THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. KEITH WILLIAMS DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KEITH L. WILLIAMS, DEFENDANT–APPELLANT.

KA 13–00720

Decided: September 30, 2016

PRESENT:  WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him, upon a jury verdict, of attempted robbery in the first degree (Penal Law

§§ 110.00, 160.15[3] ) and assault in the second degree (§ 120.05[2] ), defendant contends that Supreme Court erred in permitting the victim to testify on redirect examination that he had made a pretrial photographic identification of defendant because such testimony constituted improper bolstering.  We reject that contention.  Here, “defense counsel ‘open[ed] the door’ to such testimony by creating a ‘misimpression’ about the witness's identification that was cured by testimony concerning the photo identification” (People v. Williams, 286 A.D.2d 918, 920, lv denied 97 N.Y.2d 763;  see People v. Grimes, 289 A.D.2d 1072, 1072–1073, lv denied 97 N.Y.2d 755).

While we agree with defendant's further contention that the court erred in limiting his cross-examination of the victim (see generally People v. Wallace, 60 AD3d 1268, 1269, lv denied 12 NY3d 922), we nevertheless conclude that the error is harmless beyond a reasonable doubt.  The evidence of guilt is otherwise overwhelming, and “ ‘there is no reasonable possibility that [the] error[ ] might have contributed to defendant's conviction’ “ (Wallace, 60 AD3d at 1270, quoting People v. Crimmins, 36 N.Y.2d 230, 237).

We reject defendant's contention that the People failed to disclose certain Brady material, i.e., information underlying the charges resolved by the victim's guilty plea (see generally People v. Vilardi, 76 N.Y.2d 67, 73;  People v. Loftin, 71 AD3d 1576, 1578).  Absent a connection to the crimes charged, information concerning those underlying acts did not constitute Brady material, inasmuch as it was collateral and “ ‘was not otherwise the kind of material required by the courts to be supplied to defendant for use to impeach a witness' “ (People v. Fyffe, 249 A.D.2d 938, 939, lv denied 92 N.Y.2d 897).  We note in any event that the People provided defendant with the victim's prior criminal history before jury selection, and defendant was aware of the charges that were satisfied by the victim's guilty plea inasmuch as defense counsel had ordered the transcripts of the plea proceedings prior to trial (see Loftin, 71 AD3d at 1577).

Defendant contends that the court failed to comply with the procedure for disclosure of jury notes to counsel set forth in People v. O'Rama (78 N.Y.2d 270).  We reject defendant's contention with respect to one of the two notes at issue.  “[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response” (People v. Nealon, 26 NY3d 152, 161), and defendant has not established that the first jury note at issue was a substantive inquiry.  Instead, the note only necessitated the ministerial action of informing the jury that a requested item was not in evidence (see People v. Ziegler, 78 AD3d 545, 546, lv denied 16 NY3d 838;  see also People v. Hammond, 84 AD3d 1726, 1727, lv denied 17 NY3d 816).  Defendant failed to preserve for our review his contention with respect to the second jury note at issue.  Where, as here, “counsel has meaningful notice of a substantive jury note that has been read verbatim in open court, the court's failure to discuss the note or its intended response with counsel outside the presence of the jury is not a mode of proceedings error because counsel is not prevented from objecting or from participating meaningfully” (People v. Mack, 27 NY3d 534, 542), and thus preservation is required.  We decline to exercise our power to review defendant's contention with respect to the second jury note as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

We have considered defendant's remaining contentions and conclude that they are without merit.

Frances E. Cafarell

Clerk of the Court