People v. Moolenaar
| Decision Date | 20 September 1994 |
| Citation | 616 N.Y.S.2d 590,207 A.D.2d 711 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Brian MOOLENAAR, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before MURPHY, P.J., and WALLACH, KUPFERMAN and ASCH, JJ.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered January 17, 1992, convicting defendant, after jury trial, of attempted robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 15 years to life, and orders, same court and Justice, entered, November 5, 1992 and October 15, 1993, denying defendant's motions to vacate the judgment pursuant to CPL § 440.10, unanimously affirmed.
Contrary to defendant's argument made for the first time on appeal, the trial court's instructions to the jury, which included a reference to defendant's "ultimate" testimony, did not violate defendant's right against self-incrimination. As defense counsel's opening statement pointedly advised the jury that defendant would testify, and indeed outlined defendant's proposed testimony, the trial court offered no information not already brought before the jury by defendant. Any possible prejudice to defendant emanating from his ultimate decision not to testify was obviated by the court's no adverse inference charge, which it is presumed the jury understood and followed (People v. Davis, 58 N.Y.2d 1102, 462 N.Y.S.2d 816, 449 N.E.2d 710).
The court properly found, following inquiry at a CPL 440 hearing, that a questioned computer generated police form did not constitute Rosario material, as it contained no actual pretrial statements of witnesses but only a digest of certain portions of preexisting recorded witness statements that had been turned over to the defense at trial (see, People v. Woodside, 204 A.D.2d 168, 614 N.Y.S.2d 114 [1994].
The court also properly denied defendant's additional CPL § 440.10 motion regarding a jury note issue, on the ground that defendant did not raise this issue in his previous CPL § 440.10 motion, although in a position adequately to do so (CPL § 440.10[3][c]. In any event, the record indicates that the intent of the jury note in question was clear and properly interpreted by the court, and that the requirement that counsel be provided with the opportunity for meaningful input was satisfied (People v. O'Rama, 78 N.Y.2d 270, 278, 574 N.Y.S.2d 159, 579 N.E.2d 189). In this connection, we note that ...
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People v. Lewis
...raised on a prior CPL 440 motion (People v. Glinton, 74 N.Y.2d 779, 780, 545 N.Y.S.2d 93, 543 N.E.2d 736; see also, People v. Moolenaar, 207 A.D.2d 711, 616 N.Y.S.2d 590, 591). The use of the word "may" indicates that the court has Defendant urges that the court in 1989 should not have deci......
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People v. Rodriguez, 2004 NY Slip Op 50650(U) (NY 6/11/2004), 2920/1992.
...did not do so." See generally People v. Dominguez, 257 A.D.2d 511 (1st Dept. 1999), lv. denied, 93 N.Y.2d 872 (1999); People v. Moolenaar, 207 A.D.2d 711 (1st Dept. 1994), lv. denied, 84 N.Y.2d 1013 (1994).3 In the present case, Defendant did not make his first FOIL request for the alleged ......
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