People v. Robinson

• Decision Date: 06 April 1998
• Citation: 670 N.Y.S.2d 880,249 A.D.2d 333
• Parties: , 1998 N.Y. Slip Op. 3214 The PEOPLE, etc., Respondent, v. Larry ROBINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 880

670 N.Y.S.2d 880

249 A.D.2d 333, 1998 N.Y. Slip Op. 3214

The PEOPLE, etc., Respondent, v. Larry ROBINSON, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 6, 1998.

Joel A. Brenner, East Northport (Richard Langone, on the brief), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Linda Breen, and Howard A. Getzler, of counsel), for respondent.

Before BRACKEN, J.P., and O'BRIEN, COPERTINO and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered August 28, 1991, convicting him of murder in the second degree, and robbery in the first degree (two counts), upon a jury verdict, and sentencing him to an indeterminate term of 22 years to life imprisonment on the conviction of murder in the second degree and indeterminate terms of 3 to 9 years imprisonment on the convictions of robbery in the first degree to run concurrently with each other and consecutively to the sentence imposed on the conviction of murder in the second degree. The appeal brings for review the denial, after a hearing (Starkey, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof which directed that the sentence imposed on the defendant's conviction of murder in the second degree run consecutively to the sentences imposed on the convictions of robbery in the first degree, and substituting therefor a provision that the sentence imposed on the conviction of murder in the second degree run concurrently to sentences imposed on the convictions of robbery in the first degree; as so modified, the judgment is affirmed.

There is no basis for disturbing the hearing court's finding that the testimony of the defendant's mother was not credible, and we therefore reject the contention that the lineup identification testimony should have been suppressed because the defendant's right to counsel was violated (see, People v. Lockhart, 220 A.D.2d 690, 632 N.Y.S.2d 656). Nor are we persuaded that the People's delay in turning over the names and addresses of two eyewitnesses to the crime to defense counsel constituted a Brady violation (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). Although these witnesses could not be located and therefore did not testify, prior to trial the People turned over to defense counsel copies of the statements they gave police. The defendant did not attempt to introduce them into evidence or otherwise use them at trial, and his contention that the statements should have been admitted into evidence is therefore unpreserved (see, CPL 470.05[2] ). Moreover, the statements did not tend to exculpate the defendant, and therefore, earlier disclosure would not have helped the defendant's case or changed his trial strategy (see, People v. Vilardi, 76 N.Y.2d 67, 77, 556 N.Y.S.2d 518, 555 N.E.2d 915; People v. Estela, 177 A.D.2d 646, 577 N.Y.S.2d 70).

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we...