On March 12, 1993, defendant was convicted, upon a jury verdict, of robbery in the second degree (PL 160.10[2][b]) and sexual abuse in the first degree (PL 130.65[1]). Defendant was sentenced, as a second felony offender, to consecutive terms of seven to fourteen years and three to six years, respectively (Eggert, J.). By motion submitted on December 11, 2006, defendant moves pro se to vacate his conviction pursuant to CPL 440.10(1)(b)(h).

Factual and Procedural Background

On January 2, 1992 at about 3:00 p.m.,defendant and another approached complainant Beverly R. on Wood Avenue in the Bronx and demanded her wallet and cash. Defendant took the complainant's cash, a purse with several credit cards, a driver's license, a school identification card, an ATM card, a shopping bag from Macy's Department Store containing a pair of children's shoes, a child's coat in a smaller Macy's bag, and a receipt for those items.

Later that day, defendant was arrested and issued a summons for possessing an imitation handgun following the stop of a livery cab in which he was passenger. The police recovered a purse containing identification and credit cards belonging to the complainant and a shopping bag from Macy's Department Store with a pair of shoes, a coat, and receipts in the complainant's name.^[FN1] After contacting the complainant by phone, the police learned that defendant had robbed and sexually abused her earlier that day.

During the trial, the People introduced the coat and the complainant's identification and credit cards. The complainant testified that the police returned the shopping bag, shoes and receipts to her before trial.

The jury convicted defendant of robbery in the second degree and sexual abuse in the first degree. On March 12, 1993, defendant was sentenced to two consecutive terms of seven to [*2]fourteen years and three to six years, respectively.

On appeal, the judgment of conviction was affirmed (see People v Cheek, 216 AD2d 254 [1st Dept. 1995]). The Appellate Division found that there was probable cause to arrest defendant for possession of an imitation pistol and reasonable suspicion to detain him for further investigation after discovering that his wife's name was not the name on the credit cards and receipts that spilled out of the shopping bag when he exited the cab. The Court also found that the police had probable cause to arrest defendant for robbery after they contacted the complainant and learned that she had been robbed earlier that day.

On August 28, 1995, defendant was denied leave to appeal to the Court of Appeals (see People v Cheek, 86 NY2d 292 [1995]).

By pro se papers dated August 26, 1997, defendant petitioned the First Department for a writ of error coram nobis. Defendant raised the following claims:

(a) Appellate counsel's failure to raise an obvious meritorious issue, deprived petitioner or [sic] of his constitutional right to effective assistance of appellate counsel. Prosecution failed to turn over Officer Reass' "Stop and Frisk Report" and the court failed to make the "proper inquiry" about the missing "Rosario" material.

(b) Appellate counsel [sic] failure to raise obvious meritorious issue deprived petitioner of his constitutional right to effective assistance of counsel. Petitioner was deprived of a fair trial when the prosecution released stolen property without serving the defense with a "notice of request." The evidence was exculpatory and discoverable "Brady" material.

In response to defendant's petition for a writ of error coram nobis, the People stated that there was no Rosario violation because Officer Reass did not fill out a "Stop and Frisk Report" in the case.^[FN2]

On March 5, 1998, the Appellate Division, First Department, denied defendant's petition for a writ of coram nobis (see People v Cheek, 248 AD2d 1034 [1st Dept. 1998]).

Defendant now moves for an order vacating his conviction pursuant to CPL 440.10 on three grounds. Defendant first argues that it was improper to arrest him based upon his possession of an imitation pistol because he was actually in possession of an inoperable pellet gun, which is not unlawful under Penal Law § 265.01. He additionally contends that the misdemeanor complaint charging him with possession of an imitation pistol was jurisdictionally defective because it was never converted into an information.

Defendant's first claim is without merit. The People's failure to convert the original summons into an information has no bearing on the Court's subject matter and personal jurisdiction and does not warrant vacatur of defendant's conviction for robbery in the second degree and sexual abuse in the first degree (see People v Gonzalez, 181 Misc 2d 105 [NY City Crim. Ct., 1998]). Even where the initial accusatory instrument is defective, the Court acquires jurisdiction over the defendant by virtue of the arraignment (see People v Silas, 1 Misc 3d 209 [*3][NY Dist. Ct. 2003]). Further, as the People note, while defendant's conviction for second degree robbery under Penal Law § 160.10(2)(b) required proof that he displayed what appeared to be a pistol or other firearm, it did not require proof that the firearm was operable. Thus, the inoperability of the pistol has no bearing on defendant's robbery conviction.

Defendant's second claim is that the People failed to preserve Brady evidence when they released some of the stolen property to the complainant before trial. He argues that the release of the receipt and shopping bag to the owner prevented him from effectively cross-examining her at trial.

This claim is without merit. Preliminarily, defendant forfeited his claim that the People failed to preserve the shopping bag and receipt as evidence by failing to seek production thereof at the appropriate time (see People v Allgood, 70 NY2d 812, 813 [1987]; People v Greenwood, 166 AD3d 353 [1st Dept. 1990], lv denied 77 NY2d 839 [1991]; People v Styles, 156 AD2d 223 [1st Dept. 1989], lv denied 75 NY2d 872 [1990]). In any event, there was no violation of Brady v Maryland (373 US 83 [1963]) since this property had no exculpatory value (see People v Barnes, 29 AD3d 390 [1st Dept. 2006], lv denied 7 NY3d 785 [2006]; People v Hernandez, 291 AD2d 263 [1st Dept. 2002], lv denied 98 NY2d 797 [2002]). Defendant has failed to show how he was prejudiced by the absence of this material (see People v Styles, supra). There is no reasonable possibility that the verdict would have been different had the shopping bag and receipt been available at trial (see People v Villardi,76 NY2d 67, 66 [1990]; People v Gaston, 13 AD3d 96 [1st Dept. 2004], lv denied 4 NY3d 798 [2005]).

Defendant's third claim regarding the People's alleged failure to turn over Rosario material is also unfounded. Defendant bases his claim upon the People's failure to furnish him with a copy of the "Stop and Frisk Report" allegedly prepared by Officer Reass The prosecutor has stated on the record, however, both to the hearing court, and to the Appellate Division in response to defendant's application for coram nobis relief, that Officer Reass did not fill out such a report in this case. Since defendant failed to articulate a factual basis for asserting that the prosecutor was improperly denying the existence of this report, the prosecutor's representations are sufficient to establish that no Rosario violation occurred (see People v Poole, 48 NY2d 144, 149 [1979]; People v Rodriguez, 270 AD2d 505 [2d Dept. 2000, lv denied 95 NY2d 802 [2000]; People v Pichado, 268 AD2d 346 [2d Dept. 2000], lv denied 95 NY2d 802 [2000]; People v Minnerly, 162 AD2d 627, 268 [2d Dept. 1990], lv denied 80 NY2d 931 [1992]).

Accordingly, for the foregoing reasons, defendant's motion to vacate his conviction and for related relief is denied summarily.

This shall constitute the Decision and Order of the Court.

Dated:Bronx, New York

March 7, 2007