People v. Henderson

50 A.D.3d 439, 855 N.Y.S.2d 490

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 2008
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County (Robert G. Seewald, J.), rendered May 9, 2005, convicting defendant, after a jury trial, of attempted assault in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, and order, same court and Justice, entered March 8, 2006, which denied defendant’s CPL 440.10 motion to vacate the judgment, affirmed.

The verdict was based on more than legally sufficient evidence, and was not against the weight of the evidence. Defendant was convicted on the basis of the eyewitness testimony of two correction officers who both observed him stabbing a fellow inmate. The jury had substantial grounds to credit these officers, and to reject the testimony of defendant’s witness, the inmate-victim who vaguely claimed that the attack was by three Hispanic inmates whom he could not identify, and asserted that defendant had nothing to do with the attack.

We agree with the trial court that the People’s belated disclosure of Officer Sheridan’s report, though a Rosario violation (see People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]), does not require reversal, since we perceive no reasonable possibility that timely disclosure would have altered the verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]).

Defendant’s right to a fair trial was not violated by the prosecutor’s cross-examination of the inmate-victim or by remarks made in the course of summation. The questions and comments relating to the victim’s failure to identify defendant as the perpetrator were proper attacks on his credibility.

The cases relied upon by defendant which involve prosecutors improperly accusing defendants of intimidating witnesses in the absence of evidentiary support (see e.g. People v Lantigua, 228 AD2d 213, 219 [1996]; People v Norton, 164 AD2d 343, 356 [1990], affd 79 NY2d 808 [1991]) are inapposite here. A limited inquiry into whether the inmate-victim might have been subjected to intimidation or might legitimately expect reprisal was an appropriate subject of cross-examination, and, to the extent included in the prosecutor’s summation, was also properly responsive to the defense’s rhetorical question, “Why in a room full of inmates, did not one inmate come forward to say that Brian Henderson had anything to do with this?” Nor was improper prejudice likely from the prosecutor’s question as to the term commonly used for inmates who testify against other inmates. Any instances of improper remarks by the prosecutor were minor, isolated, and harmless.

Cases in which it was held prejudicial to inform the jury of the defendant’s incarcerated status (see e.g. People v Randolph, 18 AD3d 1013 [2005]) are inapposite where the jury was necessarily aware from the outset that the case concerned an assault among inmates at the Rikers Island detention facility (see People v Wong, 163 AD2d 738 [1990], lv denied 76 NY2d 992 [1990]).

Defendant’s remaining contentions, including those contained in his pro se supplemental brief, are without merit. Concur— Tom, J.E, Saxe, Nardelli and Sweeny, JJ.