People v. Kanefsky

64 A.D.2d 401, 409 N.Y.S.2d 713, 1978 N.Y. App. Div. LEXIS 12757

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1978
• Status: Published

Opinions

OPINION OF THE COURT

Kupferman, J.

The defendant Kanefsky, having been indicted and charged with three counts of bribe receiving in the second degree (Penal Law, § 200.10) and one count of receiving unlawful gratuities (Penal Law, § 200.35), after a jury trial was convicted only of receiving unlawful gratuities and was sentenced to pay a $250 fine and to be imprisoned for an intermittent term of six months.

The defendant was a housing inspector and was convicted largely on the testimony of one Roberto who, having worked as an "expediter” for a contractor and having been caught in a bribe to an undercover police officer, agreed to co-operate in the investigation of large scale corruption in the department of buildings. We have heretofore affirmed convictions of others in a position similar to this defendant upon the testimony of the "expediter” (People v Lombardo, 56 AD2d 534, mot for lv to app den 41 NY2d 1014; People v Santoro, 56 AD2d 741, mot for lv to app den 41 NY2d 1016). We find that with respect to all of the issues raised by the defendant, except one, these previous determinations satisfactorily disposed of the questions, or the points raised are without merit.

After the conviction and in the course of another trial of a similar nature, it became apparent that the "expediter” kept a diary of his activities and payoffs during the year 1973. This defendant had called during his trial, by subpoena, for the production of numerous documents, among which was any "memoranda made by Peter Roberto and submitted to the Department of Investigation * * * dealing with alleged payoffs made by Peter Roberto to * * * employees of the City of New York, including Bernard Kanefsky, which payments are said to have been made prior to October 23, 1973.” The commissioner of investigation produced these items, but did not include the diary in question.

Having learned of the diary during the course of the trial of another construction inspector, which diary did, incidentally, contain a reference to the construction inspector then on trial, the defendant moved to set aside his verdict for failure to produce the appointment book during his trial. The court denied the motion.

It is contended that the diary could not be probative since it ended well before January 23, 1974, the date of the only transaction for which Kanefsky was convicted, and was turned over to the department of investigation on January 10, 1974. During argument on the question, the trial court stated: "You could very well argue, that diary could have had some probative value on the jury’s consideration in terms of the overall credibility of Mr. Roberto with respect to the other counts and could have resulted in acquittal of the defendant in this count.”

While it is contended that the diary made no reference to Kanefsky that might be construed as evidence favorable to him (Brady v Maryland, 373 US 83, 87; People v Simmons, 36 NY2d 126), it might still have been utilized to impeach Roberto’s testimony on cross-examination. (See People v Rosario, 9 NY2d 286, cert den 368 US 866.) Failure to turn over possible Brady or Rosario material cannot be excused on the ground that the material would have been of limited use to the defense. (People v Consolazio, 40 NY2d 446, 454; People v Malinsky, 15 NY2d 86, 90.)

The judgment appealed from should be reversed, on the law, and the case remanded for a new trial.