The People of the State of New York, Ind. C/ Respondent, v. Darren Malone, Defendant–Appellant.

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

The People of the State of New York, Ind. C/ Respondent, v. Darren Malone, Defendant–Appellant.

5808 1384 7 09

Decided: October 25, 2011

Tom, J.P., Saxe, Moskowitz, DeGrasse, Abdus–Salaam, JJ. Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jenetha G. Philbert of counsel), for respondent.

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Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered May 14, 2009, convicting defendant, after a nonjury trial, of attempted assault in the third degree, attempted criminal mischief in the fourth degree, attempted menacing in the third degree, and harassment in the second degree, and sentencing him to an aggregate term of 3 months, unanimously affirmed.

The court properly declined to draw an adverse inference from the People's failure to preserve cell phone photographs that the victim took of her injuries and showed to the prosecutor.   The photos were not discoverable under Brady v. Maryland (373 U.S. 83 [1963] ) because there is no indication they were exculpatory or otherwise favorable to the defense.   They were not discoverable under People v. Rosario (9 N.Y.2d 286 [1961], cert denied 368 U.S. 866 [1961] ) because they were not prior statements of a witness (see CPL 240.45 [1][a];  People v. Wilson, 210 A.D.2d 520, 521 [1994], lv denied 85 N.Y.2d 982 [1995] ).

Defendant's argument that the People were required by CPL 240.20(1)(d) to obtain and disclose the photographs is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we find that defendant did not establish any basis for an adverse inference.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK