THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANGEL MALDONADO DEFENDANT APPELLANT PRO SE

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANGEL MALDONADO, DEFENDANT–APPELLANT. ANGEL MALDONADO, DEFENDANT–APPELLANT PRO SE.

KA 13–00307

Decided: November 21, 2014

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant, proceeding pro se, appeals from a judgment convicting him upon a jury verdict of grand larceny in the third degree (Penal Law former § 155.35).   Contrary to defendant's contention, the People established by a preponderance of the evidence that Supreme Court, Erie County, has geographical jurisdiction (see People v. Bigness, 28 AD3d 949, 950, lv denied 7 NY3d 810;  see generally People v. O'Connor, 21 AD3d 1364, 1365, lv denied 6 NY3d 757).   Defendant's further contention that geographical jurisdiction was not established at the grand jury proceeding is not properly before us on this direct appeal from the judgment inasmuch as “prohibition is the proper remedy for ․ a challenge [to the geographical jurisdiction to indict and to prosecute]” (Matter of Steingut v. Gold, 42 N.Y.2d 311, 316;  see Matter of Hogan v. Culkin, 18 N.Y.2d 330, 336).

Defendant's contention that the court erred in failing to dismiss the indictment as a sanction for the failure of the People to disclose certain audio recordings that constituted Brady material lacks merit.  “The determination of what is [an] appropriate [sanction] is committed to the trial court's sound discretion, and while the degree of prosecutorial fault may be considered, the court's attention should focus primarily on the overriding need to eliminate prejudice to the defendant” (People v. Martinez, 71 N.Y.2d 937, 940;  see People v. Kelly, 62 N.Y.2d 516, 520–521).   Here, the court declared a mistrial in the first trial before the People rested their case upon learning that the People had committed a Brady violation by failing to disclose evidence of certain telephone conversations between defendant and the victim, the recordings of which had been routinely destroyed following a one-year period.   At the second trial, the sanction imposed by the court for the Brady violation was to preclude the People from using any of the audio recordings of telephone conversations in their possession.   Under the circumstances of this case, we conclude that dismissal of the indictment was not required as a consequence of the Brady violation where, as here, a “less drastic sanction [ ] ․ cured any prejudice” (Kelly, 62 N.Y.2d at 518–519).   Defendant's further contention that the People failed to disclose certain Rosario material is not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147).   Defendant's contention that the second trial was barred by double jeopardy also lacks merit.   Here, defendant prevented a verdict at the first jury trial by seeking a mistrial and, contrary to defendant's contention, nothing in the record reflects that the prosecutor intentionally provoked a mistrial at the first trial (see generally Matter of Gorghan v DeAngelis, 7 NY3d 470, 473–474;  People v. Wilson, 43 AD3d 1409, 1411–1412, lv denied 9 NY3d 994;  People v. Abston, 229 A.D.2d 970, 970–971, lv denied 88 N.Y.2d 1066).   To the extent that defendant contends that the second trial was barred because the evidence at the first jury trial was legally insufficient, that contention also fails.   Although “[i]t is ․ true that considerations of double jeopardy will bar a second attempt by the People to adduce legally sufficient evidence of guilt after they have been unsuccessful in one full and fair opportunity to do so” (Rafferty v. Owens, 82 A.D.2d 582, 584 [emphasis added] ), here defendant moved for a mistrial before the People had a full and fair opportunity to present their case.

Viewing the evidence at the second jury trial in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621), we conclude that it is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Moreover, viewing the evidence at the second trial in light of the crime as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we also conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).   Defendant's further contention that the court erred in denying his motion to dismiss the indictment for legal insufficiency of the grand jury evidence is not reviewable where, as here, the judgment of conviction is based on legally sufficient trial evidence (see People v. Smith, 4 NY3d 806, 808;  People v. Lane, 106 AD3d 1478, 1481, lv denied 21 NY3d 1043).

Frances E. Cafarell

Clerk of the Court