Motion by defendant to set aside the verdict (CPL §330.30) rendered November 15, 2006 after a jury trial convicting the defendant of endangering the welfare of a child (Penal Law § 260.10[1]) and sexual abuse in the third degree (Penal Law §130.55). Specifically, the defendant claims that the verdict was not supported by the evidence, the Court erred in failing to read-back to the jury the cross-examination testimony of prosecution witnesses in addition to their direct examination testimony specifically requested by the jury, there was insufficient corroborative evidence to support the guilty verdict for sexual abuse in the third degree, and the People's Rosario violation discovered after trial requires reversal.

Criminal Procedure Law §330.30 authorizes the Court to set aside or modify a verdict upon "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court" (CPL §330.30[1]). The authority of a trial court to set aside a verdict is limited to grounds which, if raised on appeal, would require reversal as a matter of law (People v. Garcia, 237 AD2d 42, 668 NYS2d 5, appeal granted 91 NY2d 972, 672 NYS2d 852, 695 NE2d 721, reversed 93 NY2d 42, 687 NYS2d 601, 710 NE2d 247, on remand 272 AD2d 189, [*2]707 NYS2d 441, leave to appeal denied 95 NY2d 889, 715 NYS2d 381, 738 NE2d 785). This authority is more limited than that of an intermediate appellate court on direct appeal (People v. Ponnapula, 229 AD2d 357, 655 NYS2d 750). "A court adjudicating a CPL 330.30 motion may consider only issues of law which would require a reversal or modification of the judgment as a matter of law by an appellate court' (CPL 330.30[1])" (People v. Hines, 97 NY2d 56, 61, 736 NYS2d 643, 646, 762 NE2d 329, 332).

On a review under CPL §330.30, the court is restricted to determining whether the trial evidence, when viewed in the light most favorable to the People (People v. Contes, 60 NY2d 620, 467 NYS2d 349, 454 NE2d 932; People v. Hobot, 200 AD2d 586, 606 NYS2d 277), was legally sufficient to establish the Defendant's guilt of the offense for which he was convicted (see People v. Garcia, supra ). The trial court is not empowered to set aside the verdict as against the weight of the evidence, but instead must determine only "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial" in order to uphold the verdict (People v. Bleakley, 69 NY2d 490, 515 NYS2d 761, 508 NE2d 672).

Here, a review of the trial record ^[FN1] in the light most favorable to the People reveals that there was legally sufficient evidence to establish the Defendant's guilt of the crimes for which he was found guilty by a jury. The victim's testimony, including as to admissions by the defendant, as well as the testimony of the defendant's girlfriend was sufficient to support the verdict (see People v. Singh, 16 AD3d 974, 792 NYS2d 241, leave to appeal denied 5 NY3d 769, 801 NYS2d 263, 834 NE2d 1273; People v. Morey, 2245 AD2d 730, 637 NYS2d 500, appeal denied 87 NY2d 1022, 644 NYS2d 156, 666 NE2d 1070; see also People v. Gray, 15 AD3d 889, 788 NYS2d 792, leave to appeal denied 4 NY3d 831, 796 NYS2d 586, 829 NE2d 679; People v. Chapin, 265 AD2d 738, 697 NYS2d 713, leave to appeal denied 94 NY2d 917, 708 NYS2d 356, 729 NE2d 1155; People v. Bailey, 252 AD2d 815, 675 NYS2d 706, leave to appeal denied 92 NY2d 922, 680 NYS2d 463, 703 NE2d 275). A reasonable view of the testimony, found credible by the jury, of the various witnesses pertaining to the dates and time frames of the defendant's presence at the Otley residence and the Crown Point Fire Department Christmas party could support a determination that the incident occurred on the same evening as the party.When the evidence is viewed in the light most favorable to the People, the jury's verdict cannot be said to be unsupported by the evidence as a matter of law.

The defendant contends that the Court, in responding to the jury's specific, limited request for a read-back of the direct testimony of the People's witnesses, should have also directed the read-back of their cross-examination testimony. Upon a request for further information from a jury during deliberation, the court "must give such information or instruction as [it] deems proper" (CPL 310.30). The trial court is afforded discretion in responding to a jury's request for information, but "must respond meaningfully to the jury's inquiries" (People v. Almodovar, 62 NY2d 126, 131, 476 NYS2d 95, 98, 464 NE2d 463, 466, citing People v. Malloy, 55 NY2d 296, 301, 449 NYS2d 168, 434 NE2d 237; People v. Gonzalez, 293 NY 259, 262, 56 NE2d 574). In determining whether the response is meaningful, the "factors to be evaluated are the form of the [*3]jury's question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the supplemental instruction actually given and the presence or absence of prejudice to the defendant (People v. La Marca, 3 NY2d 452, 165 NYS2d 753, 144 NE2d 420; People v. Jackson, 20 NY2d 440, 285 NYS2d 8, 231 NE2d 722, cert den 391 US 928, 88 SCt 1815, 20 LEd2d 668). When a jury has requested additional information or instruction from the court, a defendant is deemed to have been afforded his constitutional right to participate in that stage of the trial where he is fully apprised of both the contents of the jury's request and the response which the court intends to give to the jury, and is given time to seek modifications of that intended response and to note objections on the record thereto (People v. O'Rama, 78 NY2d 270, 574 NYS2d 159, 579 NE2d 189; People v. Cook, 85 NY2d 928, 626 NYS2d 1000, 650 NE2d 847).

Here, the jury requested, in the midst of their deliberations, to hear a read-back of that "testimony of the prosecution witnesses asked by the prosecution attorneys [sic] as to when the party at the Otley residence occurred". Prior to returning the jury to the courtroom, the Court advised counsel and the defendant of the request and discussed the manner and extent with which it would be addressed. The Court then summoned the jury into the courtroom for clarification (see People v. Gezzo, 307 NY 385, 121 NE2d 380) and instructed the jury as follows:

"If your request is only to have the testimony of the prosecution witnesses read back to you that was given in response to questions asked by Mr. Winn, that request will or could include not only the direct-examination by Mr. Winn, but any redirect-examination by Mr. Winn of that witness. Under our rules, redirect-examination by a lawyer is limited to the matters that were the subject of cross-examination by the attorney for the defendant and that would be here Mr. Bedell. So I need to know, Mr. Foreman, and perhaps the jury will want to go back to the jury deliberation room, perhaps not, but is it the jury's request only for the testimony given by a prosecution witness in response to questions by Mr. Winn, whether it was on direct or redirect-examination or does the jury need to go back to the jury deliberation room to discuss the issue before you give me an answer? You can't discuss it here. So it appears to me that you don't have an answer right now, sir?"

The jury returned to the deliberation room to consider the Court's instructions, and more than an hour later clarified their request by means of another note specifically requesting only the direct examination testimony of the witnesses elicited on questioning by the assistant district attorney regarding the day or weekend of the Otley party. The jury's request for testimony in this case, especially in light of the court's further instruction and inquiry, was precise and furnishing the jury with the read-backs specifically requested was meaningful within the ambit of CPL §310.30. Further, the defendant's moving papers contain no plausible argument as to how providing the jury with precisely the testimony which they requested resulted in prejudice to the defendant as a matter of law. While the issue raised by the jury's note that is, the day or weekend of the party at the Otley residence was of value to defendant's alibi defense, it cannot be said that the trial evidence established the defendant's alibi as a matter of law. The cases relied on by the defendant (People v. Lourido, 70 NY2d 428, 522 NYS2d 98, 516 NE2d 1212; People v. Berger, 188 AD2d 1073, 592 NYS2d 173; People v. Sepulveda, 44 AD2d 846, 355 [*4]NYS2d 637) are inapplicable here as they involve situations where the court substituted its own judgment for that of the jury in deciding which portions of testimony were to be read back, or failed to read the requested testimony at all.

The defendant's related claim that the Court's refusal to allow a "preview" of the read-back testimony outside the presence of the jury denied him meaningful participation in a critical stage of the trial is also without merit. The jury's notes were read verbatim to counsel for both sides, and they participated in two different on-the-record conferences outside the presence of the jury. Each time, both attorneys were apprised of the response that the court intended to give to the jury and each made their respective arguments as to what, if any, modifications should be made to the intended response. Defendant and his counsel were given a full and fair opportunity to object on the record to the court's intended responses, and no such objection was ever made by the defendant or his counsel.

As to the defendant's assertion that the verdict should be set aside due to the failure of the People to satisfy the requirement for corroboration of a defendant's confession (CPL §60.50), it is well-settled that the corroboration required for an admission by the defendant is merely "some proof, of whatever weight that a crime was committed by someone" (People v. Chico, 90 NY2d 585, 589, 665 NYS2d 5, 8, 657 NE2d 1288, 1291; see also People v. Barcomb, 256 AD2d 926, 683 NYS2d 311, leave to appeal denied 94 NY2d 798, 700 NYS2d 431, 722 NE2d 511). The additional proof necessary to corroborate a defendant's confession need not corroborate every detail of the confession, and may be either direct or circumstantial (See People v. Morgan, 246 AD2d 686, 667 NYS2d 470, appeal denied 91 NY2d 975, 672 NYS2d 855, 695 NE2d 724).

At trial, the victim testified that she had a conversation with the defendant a few days after the incident in which the defendant told her that his girlfriend was mad at him because, his girlfriend had told him, he had touched the victim's genital area in a sexual manner, which he then admitted to doing. This admission was corroborated by the victim's testimony that she definitely recalls Michael Alteri touching her, and by his girlfriend's testimony that she believes "that he had been touching her breast"^[FN2] and "saw his hand go over to that area"^[FN3]. When taken together with the defendant's statement, this evidence satisfies the People's burden to corroborate the defendant's admission. Moreover, a reasonable view of the testimony of the defendant's girlfriend alone supports the jury's verdict of guilty on the charge of sexual abuse in the third degree.

Finally, the defendant claims that the People committed a Rosario violation (People v. Rosario, 9 NY2d 286, 213 NYS2d 448, 173 NE2d 881; CPL §240.45) by failing to disclose the victim's March 10, 2006 written statement to the New York State Police, which requires reversal of the conviction under CPL §240.75. There is no question that the undisclosed material in this case, consisting of the victim's sworn written statement to law enforcement about the criminal transaction involving the defendant, amounted to Rosario material and was clearly subject to disclosure under §240.45. It does not constitute exculpatory Brady material (Brady v. Maryland, 373 US 83, 83 SCt 1194, 10 LEd2d 215) since the victim merely reaffirms all of [*5]the her allegations made against the defendant in her prior statement to law enforcement and adds details of one additional encounter with the defendant.

No conviction shall be set aside for a failure of the People to turn over Rosario material "in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial (CPL §240.75). The "reasonable probability" test is a "backward looking, outcome-oriented standard of review that give[s] dispositive weight to the strength of the People's case" (People v. Vilardi, 76 NY2d 67, 77, 556 NYS2d 518, 524, 555 NE2d 915, 921). Moreover, a Rosario violation which cannot reasonably or logically be said to have had any impact at all on manner in which any unrelated charge was litigated will not require reversal of the unrelated charge (see People v. Baghai-Kermani, 84 NY2d 525, 620 NYS2d 313, 644 NE2d 1004).

Despite the disturbing pattern of non-disclosure by the People in this and other recent cases ^[FN4], the defendant bears the burden of establishing the prejudicial effect of the violation (CPL §240.75; see also People v. Felix- Torres, 281 AD2d 649, 721 NYS2d 415, 2001 Slip Op. 01724, appeal after remand 286 AD2d 784, 730 NYS2d 257, 2001 Slip Op. 06949, leave to appeal denied 97 NY2d 681, 764 NE2d 400, 738 NYS2d 296). Considering the totality of the evidence, even if the victim's testimony was entirely disregarded by the jury based on concerns over her credibility the apparent issue asserted by the defendant there was other evidence sufficient to establish the elements of sexual abuse in the third degree. Though the failure to disclose, and the specious excuse proffered by the prosecution, are both troubling, it cannot be determined as a matter of law that the People's failure to disclose the March 10, 2006 statement could reasonably have affected the jury's verdict in this case. Similarly, the Rosario violation does not reasonably or logically affect the defendant's conviction for endangering the welfare of a child as the testimony of the defendant's girlfriend alone is sufficient to establish each and every element of that crime.

The Defendant's motion to set aside the verdict is in all respects denied, and it is SO ORDERED.

Decision and Order signed this 2th day of March, 2007, at Elizabethtown, New York.

ENTER

________________________________

Richard B. Meyer

J.C.C.