People v. Howard

• Decision Date: 16 November 1994
• Parties: PEOPLE of the State of New York, Respondent, v. Clifford HOWARD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 993

619 N.Y.S.2d 993

209 A.D.2d 1014

PEOPLE of the State of New York, Respondent, v. Clifford HOWARD, Appellant.

Supreme Court of New York, Appellate Division,

Fourth Department.

Nov. 16, 1994.

John Cirando, Syracuse, for appellant.

James B. Vargason by Karl Sleight, Auburn, for respondent.

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment, following a nonjury trial, convicting him of one count of murder in the second degree. We conclude that the pretrial photo array identification was not unduly suggestive. Even if the array were suggestive, there was a sufficient independent basis for the witness's in-court identification of defendant (see, People v. Callace, 143 A.D.2d 1027, 533 N.Y.S.2d 745, lv. denied 73 N.Y.2d 889, 538 N.Y.S.2d 802, 535 N.E.2d 1342). Although the identification testimony was bolstered, that error is harmless in light of the otherwise overwhelming evidence of guilt and the strong and unequivocal identification of defendant (see, People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230, 443 N.E.2d 478; People v. Garner, 190 A.D.2d 1041, 593 N.Y.S.2d 136, lv. denied 81 N.Y.2d 885, 597 N.Y.S.2d 947, 613 N.E.2d 979). Moreover, because the case was tried before the court without a jury, we may presume that the court considered only competent evidence in reaching its verdict (see, People v. Limpert, 186 A.D.2d 1005, 588 N.Y.S.2d 461, lv. denied 81 N.Y.2d 764, 594 N.Y.S.2d 726, 610 N.E.2d 399).

There is no merit to defendant's argument that the prosecutor failed to turn over Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, rearg. denied 9 N.Y.2d 908, 216 N.Y.S.2d 1025, 176 N.E.2d 111, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, rearg. denied 14 N.Y.2d 876, 252 N.Y.S.2d 1027, 200 N.E.2d 784, 15 N.Y.2d 765, 257 N.Y.S.2d 1027, 205 N.E.2d 538). The transcripts of prison disciplinary proceedings involving the same incident were not in the People's custody and control (see, People v. Flynn, 79 N.Y.2d 879, 882, 581 N.Y.S.2d 160, 589 N.E.2d 383; People v. Washington, 196 A.D.2d 346, 612 N.Y.S.2d 586, lv. granted 83 N.Y.2d 1008, 616 N.Y.S.2d 489, 640 N.E.2d 157); nevertheless, during trial, relevant portions of the transcripts were turned over to defendant pursuant to a court ordered subpoena served on the Department of Corrections and defendant was not substantially prejudiced (see, People v. Jackson, 154 A.D.2d 930, 547 N.Y.S.2d 164, lv. denied 74 N.Y.2d 949, 550 N.Y.S.2d 284, 549 N.E.2d 486). Although defendant objected to the failure to turn over the transcript of the testimony of a confidential informant, the confidential informant was not a prosecution witness at trial, and thus the People were not obligated to produce that transcript (see, People v. Love, 187 A.D.2d 1030, 591 N.Y.S.2d 111, lv. denied 81 N.Y.2d...