Defendant now moves pursuant to CPL 330.30 to set aside his conviction on the grounds that the People withheld Brady material, namely, the grand jury testimony of Diane Kelly.^[FN1]

He also requests an in camera examination of Ms. Kelly's grand jury minutes for "exculpatory evidence." In deciding this motion, the court has considered the motion papers, the Affirmation in Opposition, defendant's Reply Affirmation, and the court file.

At trial, defendant testified that on April 22, 2004, he and Diane Kelly (Kelly) were inside the Amici restaurant when the decedent entered the restaurant in an agitated state and holding a stick ball bat. Once inside the restaurant, Geritano struck at defendant with the bat. A fight started which spilled out into the street. It was witnessed by several bystanders, both pedestrians and drivers, some of whom testified at trial. Defendant's testimony closely resembled Kelly's account, which was given to police detectives shortly after the stabbing.^[FN2]

Defendant also testified that Kelly had witnessed a prior incident involving Geritano in October 2003. In that instance, Geritano came to the Amici restaurant looking for Garguillo, but encountered only Kelly and one of her employees, Karen Ferrera. According to Ferrera, who testified for the defense, Geritano repeatedly demanded that they close the restaurant, telling them that defendant had a "big problem" with him. He threatened to bomb the place if they didn't close it, broke some items, and left. He returned several times over the course of the afternoon, repeating his demands on each occasion. At some point during the afternoon or evening, Kelly called defendant in Florida and reported the incident to him. Several other witnesses confirmed Kelly's presence at the restaurant during the October 2003 event.

At trial, the People requested a missing witness charge for defendant's failure to call [*2]Kelly as a witness. Defense counsel objected, stating that Kelly would invoke her Fifth Amendment right if called. The court denied the People's request.

After deliberations, the defendant was convicted of murder in the second degree.

Despite the People's now consenting to an in camera inspection of Kelly's grand jury testimony as requested by defendant, this Court is not relieved of the performance of its judicial function and must decide defendant's request for relief as a matter of law.^[FN3]

There is no general constitutional right to discovery in a criminal case, and Brady did not create one.^[FN4]

In New York there is no independent state constitutional right to discovery.^[FN5] Rather, discovery in criminal proceedings is entirely governed by statute.^[FN6] Since there is no Constitutional right to discovery in criminal cases, courts cannot grant discovery where no statutory basis exists.^[FN7] Defendant's request for in camera review of Kelly's grand jury testimony is principally a request for post-verdict discovery. There is no statutory entitlement ^[FN8] to such discovery in CPL 240, therefore, defendant's discovery request is denied.

Second, the evidence must have been suppressed by the State, either willfully or inadvertently.^[FN14] Evidence is not deemed "suppressed" if the defendant knew or should have reasonably known of the evidence and its exculpatory nature.^[FN15]

Third, prejudice must have ensued.^[FN16] Under the Federal Constitution, prejudice to the defendant is measured by whether there is a reasonable probability of a different result.^[FN17] An examination of the entire record is necessary in order to determine prejudice.^[FN18] When the favorable evidence is merely impeaching evidence, a new trial is necessary only where the evidence is thin and uncorroborated.^[FN19]

New York law utilizes different criteria in measuring prejudice to a defendant, depending on the circumstances. Where a defendant has made a specific request for a particular item of evidence, New York courts judge the materiality of the evidence by whether there is a reasonable possibility that the failure to disclose the item contributed to the verdict.^[FN20] If a defendant makes a general or nonspecific request for exculpatory evidence, the failure to disclose such material is a due process violation in New York only if the evidence created a reasonable doubt that did not otherwise exist.^[FN21]

Although the defendant did not have specific knowledge of what Kelly testified to, the law of Brady does not require that he should.^[FN23]

Defendant's argument thus fails the first component of the Brady analysis.

The defendant also cannot establish that he was unaware of Diane Kelly's existence. The record yields an abundance of facts demonstrating that defendant knew or should have known of both Diane Kelly and her potential testimony. First, pursuant to pre-trial discovery demands,^[FN24] defense counsel was provided with a police report dated August 22, 2004 which stated that Kelly was interviewed at the 68th Precinct and summarized her interview.

ADA Mitchell Benson's answer to defendant's Omnibus Motion dated September 8, 2004, also revealed much of the substance of Kelly's grand jury testimony. Although ADA Benson did not refer to her by name, his reference to what the the restaurant "witness" saw and her description of what the defendant did strongly suggests that it was Kelly who testified in the grand jury about these details.

Defendant himself testified that Kelly was present in the restaurant with him when the fight between decedent and defendant erupted. He also stated that he and Kelly had a business relationship and that they were co-owners of the Amici restaurant. In fact, defendant went so far as to say that his purpose in being at the restaurant on the date of Geritano's stabbing was to speak with her about the sale of part of his property to Kelly.

Defense counsel also elicited evidence from defense witnesses Margo Thompson and Karen Ferrera of Kelly's presence at the restaurant during key events. Thompson and Ferrera were Kelly's employees, and both of them testified that Kelly was their boss. In addition, Ferrera testified that Kelly was also present during the October incident.

Thus, defendant's claim that either Kelly or her testimony was suppressed by the People is unsupported and contradicted by the defendant.

Finally, there is neither a reasonable possibility nor a reasonable probability that a different result would have occurred had the defendant been privy to Kelly's grand jury testimony.

Kelly and her attorney appeared in court. Her attorney represented that she would plead the Fifth Amendment if called to testify. Since she did not testify, her Grand Jury testimony could not have been used to impeach her. Therefore, this testimony could under no [*5]circumstances have affected the jury. Consequently, there is neither a reasonable probability nor a reasonable possibility that the verdict would have been different had Kelly's Grand Jury testimony been made available to defendant.

Defendant has failed to show any Brady violation. The motion to set aside the verdict on the ground of a Brady violation is denied.

CPL 330.30 fundamentally limits a trial court's jurisdiction to matters of law. Only matters which have been preserved for appellate review may be raised.^[FN26] At no time did defendant ask the court to rule that Kelly's assertion of her fifth amendment right was improper. Defendant's failure to preserve this issue for appeal mandatorily bars this court from entertaining the motion on this basis.

Nevertheless, defendant's argument on this issue is unavailing. The fact that Kelly was conferred transactional immunity ^[FN27] when she appeared as a grand jury witness does not deprive her of her Fifth Amendment rights in a future proceeding concerning her testimony. Under Penal Law §210.20, the giving of two statements under oath which are inconsistent with each other is sufficient evidence of perjury, and the granting of immunity does not exempt such a witness from a perjury prosecution. If Kelly felt by testifying at trial she might perjure herself, she had no way of avoiding perjury other than by asserting her Fifth Amendment right not to testify.

Thus, Kelly's assertion of her Fifth Amendment right was legitimate.^[FN28]

For the reasons stated herein, the defendant's motion is denied in its entirety.

E N T E R

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J.S.C. Plummer E. Lott