People v. Travis

• Decision Date: 15 June 2000
• Citation: 273 A.D.2d 544,711 N.Y.S.2d 514
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>DANNY E. TRAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

273 A.D.2d 544

711 N.Y.S.2d 514

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.DANNY E. TRAVIS, Appellant.

Rose, J.

Decided June 15, 2000.

Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur.

Rose, J.

On August 4, 1998, while an inmate at the Cortland County Jail, defendant threw balls of wet toilet paper at Matthew De Matteo, a correction officer. One of the balls struck De Matteo's left eye, causing an abrasion of the cornea. Defendant was subsequently indicted on two separate counts of assault in the second degree and, following a jury trial, he was convicted of attempted assault in the second degree and assault in the second degree. County Court sentenced defendant to concurrent determinate terms of imprisonment of four years for his conviction of attempted assault in the second degree and six years for his conviction of assault in the second degree. Defendant appeals.

We consider initially defendant's contention that certain medical reports and photographs of De Matteo in the People's possession were exculpatory and not timely provided to him despite his demands. The medical reports were from Michelle Barno and Dean Mitchell, optometrists who examined De Matteo on August 7, 1998 and August 12, 1998, respectively, and each noted an "assessment/diagnosis" of "no apparent damage". The photographs taken on or about the date of De Matteo's injury appeared to portray him in an uninjured state. These materials were not furnished to defendant until approximately one week before trial.

Assuming, without deciding, that the materials involved here were exculpatory, we find that no reversible error occurred in relation to them. In People v Cortijo (70 NY2d 868), the Court of Appeals instructed that "`[w]hile the People unquestionably have a duty to disclose exculpatory material in their control,' a defendant's constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his case" (id., at 870, quoting People v Brown, 67 NY2d 555, 559, cert denied 479 US 1093). The People's failure to furnish the materials to defendant earlier did not violate his right to a fair trial because, after obtaining a two-day adjournment of the trial in order to prepare, defendant used the reports effectively in cross-examining De Matteo, called Barno and Mitchell as defense witnesses, and offered two of the photographs into evidence.

Defendant further contends that County Court committed reversible error in denying his motion to compel production of additional potential Brady material consisting of statements he and others made in connection with an administrative jail grievance he filed against De Matteo for unfair treatment as a result of an event that occurred in February 1999. The evidence supports County Court's finding that the statements of events which occurred six months after the behavior resulting in the indictment are "neither relevant nor discoverable, and in any event, not exculpatory".

Defendant next contends that De Matteo testified to uncharged criminal, vicious or immoral conduct of defendant about which the People failed to notify defendant pursuant to the provisions of CPL 240.43 and the Molineux doctrine (see, People v Molineux, 168 NY 264). The statute provides that "[u]pon a request by a defendant, the prosecutor shall notify the defendant of all specific instances of a defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching the credibility of the defendant" (CPL 240.43 [emphasis supplied]). Specifically, De Matteo testified that on the day of the assault defendant had lost the privilege of making telephone calls as the result of a jail disciplinary proceeding, De Matteo then blocked defendant's attempt to make a telephone call and defendant retorted, "when I get off key block tomorrow you better watch the f**k out". The People elicited this testimony during its case-in-chief to provide the context in which the charged conduct occurred, as evidence of defendant's intent and not to impeach his testimony. Accordingly, County Court properly allowed the testimony.

Defendant also contends that County Court committed reversible error by admitting into evidence a bag containing a collection of toilet paper and banana peel. Kristopher Keelhar, a correction officer who witnessed the incident and subsequently gathered the contents of the evidence bag offered by the People, testified that the exhibit contained all of the material thrown by defendant, some of which struck De Matteo and some of which did not. County Court instructed the jury that "there has been no testimony that the object that struck Officer DeMatteo, if that's what you believe, had any debris in it". In light of this clarifying instruction, admission of this physical evidence was not error.

We find a similar lack of merit in defendant's contention that County Court demonstrated judicial bias against him and in favor of the People by opining to counsel that he would be convicted, usurping the prosecutor's function and ruling in favor of the People to an excessive degree. When County Court's statements are read in context, however, they reveal no bias and the record shows no interference with the introduction of evidence or the cross-examination of witnesses. Moreover, on the six occasions when County Court asked questions, they were clearly intended to clarify and expedite the proceedings (see, Delcor Labs. v Cosmair, Inc., 263 AD2d 402, 403, lv denied 94 NY2d 761; Pallotta v West Bend Co., 166 AD2d 637, 639; People v Morin, 96 AD2d 1135, 1136)

Finally, defendant contends that his convictions are not supported by legally sufficient evidence that a dangerous instrument was utilized to injure De Matteo, that De Matteo in fact suffered a physical injury and that defendant had the requisite intent to commit the crime.

To conclude that there is legally sufficient evidence to support a jury verdict, this Court "must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" (People v Bleakley, 69 NY2d 490, 495 [citation omitted]). Here, the first count of the indictment charged assault in the second degree under Penal Law § 120.05 (2). To establish this crime, the evidence must show that a defendant, "[w]ith intent to cause physical injury to another person * * * causes such injury to such person * * * by means of * * *...