People v. Bryant
| Decision Date | 02 February 1998 |
| Citation | 668 N.Y.S.2d 646,247 A.D.2d 400 |
| Parties | , 1998 N.Y. Slip Op. 1187 The PEOPLE, etc., Respondent, v. Kevin BRYANT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Daniel L. Greenberg, New York City (Adrienne Hale, of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Ann Bordley, of counsel), for respondent.
Before MILLER, J.P., and O'BRIEN, COPERTINO and McGINITY, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Aiello, J.), dated June 2, 1995, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court, rendered January 28, 1985.
ORDERED that the order is affirmed.
The defendant contends that the court was required to hold a hearing with respect to his claim that the prosecution withheld Brady material (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) at his trial. We conclude that the court's summary denial of the motion was proper (see, CPL 440.30[4][a] ).
The defendant was convicted of the 1983 murder of a 56-year-old man, who died after being robbed and assaulted on the street by the defendant and five codefendants. The sole eyewitness to the incident, who worked in a nearby store, had seen the defendant in the neighborhood almost every day for at least two years and identified him as one of the culprits.
The defendant's motion to vacate the judgment was based on the 1994 affidavit of Nelson Alvarez, who had been incarcerated with one of the defendant's codefendants. In his affidavit, Alvarez claimed that he had assisted the police in their investigation of the defendant's crime in exchange for a promise of leniency on unrelated charges pending against him. Alvarez claimed that he lied when he told the police that the defendant had confessed to the murder and that he was under duress when he selected certain photographs, including that of the defendant, from a book of identification photographs. In addition, Alvarez stated that he had "committed [himself] to continuously prompt" the eyewitness that the persons Alvarez had selected from the book of identification photographs were indeed the perpetrators.
The Supreme Court properly determined that, since Alvarez did not testify at the trial, his credibility was not in issue, and therefore any promise of leniency he had received from the police in exchange for assisting in the investigation was not Brady material (cf., People v. Steadman, 82 N.Y.2d 1, 603 N.Y.S.2d 382, 623 N.E.2d 509).
Alvarez's statement that he lied when he told the police that ...
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