People v Santor (2011 NY Slip Op 52400(U))

People v Santor (E.)

2011 NY Slip Op 52400(U) [34 Misc 3d 136(A)]

Decided on December 27, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

E. Cole Santor, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Sondra K. Pardes, J.), rendered November 17, 2008. The judgment convicted defendant, upon a jury verdict, of attempted assault in the third degree and harassment in the second degree.

Defendant was charged with assault in the third degree (Penal Law § 120.00 [1]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]) for allegedly biting the complainant. Prior to the commencement of the jury trial, defense counsel asked the District Court to sanction the People for failing to disclose the existence of a surveillance videotape of the alleged incident. The People asserted that the complainant had never given a copy of the videotape to police investigators and that, in fact, the videotape was no longer extant. The District Court decided not to sanction the People because defendant did not establish that the People had ever possessed the videotape. After trial, defendant was found guilty of attempted assault in the third degree and harassment in the second degree.

Contrary to defendant's contention, he was not entitled to any relief for the alleged failure to turn over Brady material (see Brady v Maryland, 373 US 83 [1963]). Brady material must be exculpatory and within the possession, custody, or control of the People (see People v Johnson, 195 AD2d 481, 482 [1993]). In the instant case, there was no Brady violation because defendant failed to establish that the People had ever possessed the surveillance videotape (see People v [*2]Carnett, 19 AD3d 703 [2005]; People v O'Brien, 270 AD2d 433, 434 [2000]; People v McCargo, 251 AD2d 600 [1998]). Moreover, under New York law, the People had no obligation to make diligent efforts to preserve the alleged videotape because they had never possessed it in the first place (see People v James, 93 NY2d 620, 644 [1999]). Thus, the District Court did not improvidently exercise its discretion in refusing to sanction the People (see id).