People v. Austin

• Decision Date: 13 March 1989
• Citation: 148 A.D.2d 542,540 N.Y.S.2d 183
• Parties: The PEOPLE, etc., Respondent, v. Victor AUSTIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 183

540 N.Y.S.2d 183

148 A.D.2d 542

The PEOPLE, etc., Respondent, v. Victor AUSTIN, Appellant.

Supreme Court of New York, Appellate Division Second Department.

March 13, 1989

Philip L. Weinstein, New York City (Paul Denicoff and David P. Greenberg, of counsel), for appellant. Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Janet M. Berk and Peter R. Chatzinoff, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J), rendered July 11, 1985, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The trial court did not err in failing to direct the People to turn over the Grand Jury synopsis sheet and the data analysis form to defense counsel pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64), as neither contained an abbreviated summary of an interview with any of the People's witnesses (see, People v. Adger, 144 A.D.2d 475, 534 N.Y.S.2d 4 [2d Dept., 1988]; People v. Williams, 128 A.D.2d 912, 513 N.Y.S.2d 840, lv. denied 69 N.Y.2d 1011, 517 N.Y.S.2d 1045, 511 N.E.2d 104). Moreover, the material at issue is duplicative of statements previously turned over to defense counsel, and thus the defendant was not, in any event, entitled to its disclosure (see, People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011; People v. Consolazio, 40 N.Y.2d 446, 387 N.Y.S.2d 62, 354 N.E.2d 801). The defendant challenges his adjudication as a persistent violent felony offender on the basis that, inter alia, the 1976 and 1977 convictions cited in the People's predicate felony statement were unconstitutionally obtained. Having failed to demonstrate good cause for his failure to challenge the constitutionality of the 1976 conviction upon his sentencing in 1977, the defendant has waived any allegation of unconstitutionality thereof (see, CPL 400.21[7][b]; People v. Williams, 133 A.D.2d 871, 520 N.Y.S.2d 424; People v. Lopez, 123 A.D.2d 360, 506 N.Y.S.2d 371). Similarly, by failing to seek review of the 1977 second felony offender adjudication by way of direct appeal or appropriate postjudgment motion, the defendant has waived his contention that the adjudication was erroneous because the attorney who represented him in 1977 was the same attorney who represented him in 1976 and thus would not challenge the use of the 1976 conviction as a predicate on the basis...