PEOPLE v. NIELSEN

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Tammy L. NIELSEN, Defendant-Appellant.

Decided: November 13, 2009

PRESENT:  SCUDDER, P.J., CENTRA, FAHEY, GREEN, AND GORSKI, JJ. Bruce R. Bryan, Syracuse, for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of Counsel), for Respondent.

 Defendant appeals from a judgment convicting her upon a jury verdict of grand larceny in the third degree (Penal Law § 155.35).   Defendant failed to preserve for our review her contention that the evidence is legally insufficient to support the conviction inasmuch as her motion for a trial order of dismissal was not “ ‘specifically directed’ at the alleged error [s]” asserted on appeal (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We reject the contention of defendant that she was denied a fair trial based on the failure of the People to disclose prior to trial that they had made assurances to one of their witnesses that he would not be prosecuted for tax evasion.   Even assuming, arguendo, that those assurances constituted Brady material, we agree with Supreme Court that defendant was “given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during [her] case,” and thus reversal is not required (People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349;  see People v. Tillman, 261 A.D.2d 854, 691 N.Y.S.2d 212, lv. denied 93 N.Y.2d 980, 695 N.Y.S.2d 66, 716 N.E.2d 1111).   The court properly denied defendant's motion to dismiss the indictment based upon the alleged insufficiency of the prosecutor's opening statement.   “The prosecutor stated the nature of the charge[ ] and the facts that he expected to prove in support of them[,] and thus his opening statement was adequate” (People v. Dennee, 291 A.D.2d 888, 738 N.Y.S.2d 146, lv. denied 98 N.Y.2d 650, 745 N.Y.S.2d 508, 772 N.E.2d 611;  see generally People v. Kurtz, 51 N.Y.2d 380, 384, 434 N.Y.S.2d 200, 414 N.E.2d 699, cert. denied 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301).   The record does not support defendant's contention that the court improperly assumed the function or appearance of an advocate during the trial (see People v. Wager, 19 A.D.3d 263, 796 N.Y.S.2d 615, lv. denied 5 N.Y.3d 811, 803 N.Y.S.2d 40, 836 N.E.2d 1163).   Finally, the incarceration portion of the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Supreme Court, Onondaga County, for proceedings pursuant to CPL 460.50(5).

MEMORANDUM: