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Tom, J.P., Saxe, Nardelli, Sweeny, Catterson, JJ. 1832- 1832A The People of the State of New York, Ind. 1883/03 Respondent, -against- Brian Henderson, Defendant-Appellant. _________________________ Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), and Simpson Thacher & Bartlett LLP, New York (Marsha W. Yee of counsel), for appellant. Brian Henderson, appellant pro se. Robert T. Johnson, District Attorney, Bronx (<strong>Law</strong>rence H. Cunningham of counsel), for respondent. _________________________ 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 48
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 49
Page 1 and 2: SUPREME COURT, APPELLATE DIVISION F
Page 3 and 4: Lippman, P.J., Tom, Williams, Acost
Page 5 and 6: Danann Realty Corp. v Harris, 5 NY2
Page 7 and 8: Circle Rubbish launched “a force
Page 9 and 10: classes, and scheduling visits with
Page 13 and 14: was cut too deep. Defendants’ the
Page 21 and 22: witnesses and collective tailoring
Page 23 and 24: stipulated to the grounds, and the
Page 29 and 30: Mullaney v Wilbur, 421 US 684 [1975
Page 33 and 34: liability claims “share few, if a
Page 35 and 36: ecords of drug transactions and def
Page 37 and 38: argument that this testimony invade
Page 39 and 40: in the 12 hours prior to plaintiff
Page 41 and 42: individual as the sole tenant in th
Page 43 and 44: opposed the motion, and pending the
Page 45 and 46: that defendant’s vehicle was regi
Page 47: arrests respectively. In fact, one
Page 51 and 52: CATTERSON, J. (dissenting) Because
Page 53 and 54: person that’s in the cell closest
Page 55 and 56: evidence that anyone had intimidate
Page 57 and 58: him. See People v. Harte, 29 A.D.3d
Page 59 and 60: summary judgment on his Labor Law
Page 61 and 62: aise a triable issue as to construc
Page 63 and 64: specific substance of the conversat
Page 65 and 66: Gonzalez, J.P., Williams, Catterson
Page 67 and 68: Mazzarelli, J.P., Andrias, Friedman
Page 69 and 70: interest of justice. As an alternat
Page 77 and 78: leave to amend the complaint to ass
Page 79 and 80: in the first degree. After being de
Page 83 and 84: decline to review it in the interes
Page 85 and 86: panelist understood that he needed
Page 93 and 94: to be compensated for its services
Page 99 and 100:
Lippman, P.J., Saxe, Nardelli, Will
Page 101 and 102:
Lippman, P.J., Tom, Mazzarelli, And
Page 103 and 104:
Tom, J.P., Andrias, Friedman, Gonza
Page 105 and 106:
Mazzarelli, J.P., Andrias, Friedman
Page 107 and 108:
Gonzalez, J.P., Nardelli, Buckley,
Page 109:
The Following Orders Were Entered A
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