People v. Davis

• Decision Date: 12 May 1992
• Parties: The PEOPLE of the State of New York, Respondent, v. Eddie DAVIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 412

583 N.Y.S.2d 412

183 A.D.2d 474

The PEOPLE of the State of New York, Respondent, v. Eddie DAVIS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 12, 1992.

Before ROSENBERGER, J.P., and WALLACH, ROSS, ASCH and KASSAL, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Steven Barrett, J.) rendered October 12, 1989 convicting defendant after a jury trial of murder in the second degree and attempted robbery in the first degree, and sentencing him to concurrent terms of fifteen years to life and five to ten years, respectively, and order of the same Court and Justice entered August 14, 1991, denying defendant's motion made pursuant to CPL § 440.10 to vacate the judgment of conviction, unanimously affirmed.

Defendant acted as a lookout during the aborted robbery of a "crack house" apartment by two accomplices, his brother Larry Davis and a third man known only as "Bo." It was Larry Davis who fired a bullet through the apartment door at chest-high level, killing the victim. Both defendant and his brother were identified in photo arrays and in subsequent lineups.

During the trial, a female witness who had testified as to defendant's inculpatory statements had previously testified for the People in an unrelated investigation, wherein she provided evidence of a confession made to her by the defendant in that unrelated matter. Despite her testimony, that defendant was acquitted. At issue is the fact that this information was not disclosed to the present defendant, which forms the basis of his Rosario and Brady claims which were rejected by Supreme Court in its denial of defendant's CPL 440.10 motion.

Defendant has established no connection between the two cases. Further, he has failed to demonstrate that the witness' testimony in the unrelated case was fabricated, or that the testimony "relates to the subject matter of the witness's testimony" in the present case (CPL 240.44[1]; 240.45[1][a]. We have previously rejected Rosario claims with respect to police reports in unrelated investigations which were of marginal value to the present investigation (People v. Gayle, 168 A.D.2d 201, 562 N.Y.S.2d 86, lv. denied, 78 N.Y.2d 955, 573 N.Y.S.2d 650, 578 N.E.2d 448); conversations of witnesses not involving the instant defendant (People v. Fridman, 162 A.D.2d 136, 556 N.Y.S.2d 565, lv. denied, 76 N.Y.2d 893, 561 N.Y.S.2d 555, 562 N.E.2d 880) and grand jury testimony in an unrelated case (People v. Fluellen, 132 A.D.2d 455, 517 N.Y.S.2d 512, lv. denied, 70 N.Y.2d 874, 523 N.Y.S.2d 501, 518 N.E.2d 12). The People's failure to disclose this information does not constitute reversible error (People v. Ortiz, 173 A.D.2d 189, 569 N.Y.S.2d 81, lv. denied, 78 N.Y.2d 1129, 578 N.Y.S.2d 887, 586 N.E.2d 70), and we reject defendant's argument, as mere speculation, that the acquittal in the unrelated case requires a conclusion that the...