People v. Hurley

202 A.D.2d 371, 612 N.Y.S.2d 828, 1994 N.Y. App. Div. LEXIS 3098

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Robert Haft, J.), rendered July 5, 1989, convicting defendant, after a jury trial, of four counts of attempted assault in the first degree, criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the fourth degree, and criminal trespass in the first degree, and sentencing him, as a persisent violent felony offender, to five concurrent prison terms of 20 years to life on the assault and weapons possession counts, to be served concurrently with two concurrent terms of 3íó to 7 years on the controlled substance and trespass counts, unanimously affirmed. Order, Supreme Court, New York County (Peter McQuillan, J.), entered June 3, 1992, denying defendant’s motion to vacate the judgment pursuant to CPL 440.10, unanimously affirmed.

In the absence of the documents defendant claims contains undisclosed Rosario material, some of which are in defendant’s possession as a result of his Freedom of Information Law (FOIL) request and others of which might be obtained if defendant were to exhaust his administrative remedies under FOIL (Hurley v Brown, 184 AD2d 370), defendant failed to raise an issue of fact warranting a hearing on his claim that the People failed to disclose Rosario material (CPL 440.30 [4] [b]; see, People v Brown, 56 NY2d 242, 246-247; People v Friedgood, 58 NY2d 467, 473). Since defendant moved to consolidate his appeal from the denial of his CPL 440.10 motion with his direct appeal from the judgment, and since defendant raises only the Rosario claim on this consolidated appeal without offering any challenge to his conviction based on the trial record, the judgment of conviction must be affirmed. Concur — Carro, J. P., Rosenberger, Ross, Asch and Tom, JJ.