        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

656
KA 10-01006
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRADLEY I. KYLER, DEFENDANT-APPELLANT.


WAGNER & HART LLP, OLEAN (JANINE FODOR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered January 4, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of two counts of criminal sale of a controlled
substance in the third degree (Penal Law § 220.39 [1]), defendant
contends that he is entitled to be resentenced because the prosecutor
failed to provide Brady material, i.e., the details of defendant’s
alleged cooperation with law enforcement agents and any promises that
he received in return for such cooperation. Initially, we note that
defendant is correct that “Brady concerns exculpatory evidence that is
relevant . . . to punishment” (People v Reese, 23 AD3d 1034, 1036, lv
denied 6 NY3d 779; see generally Brady v Maryland, 373 US 83, 87).
Even assuming, arguendo, that defendant’s contention survives his
valid waiver of the right to appeal (see generally People v Johnson,
60 AD3d 1496, 1497, lv denied 12 NY3d 926), however, we conclude that
it is unavailing. Defendant “failed to establish the existence of the
[alleged Brady material] . . ., and its potential [mitigation] value
is purely speculative” (id.; see People v Little, 23 AD3d 1117, 1118,
lv denied 6 NY3d 777; People v Mellerson, 15 AD3d 964, 965, lv denied
5 NY3d 791). In addition, “ ‘it is well settled that evidence is not
deemed to be Brady material when the defendant has knowledge of it,’
and here the record establishes that defendant was aware [of the
extent of his cooperation with law enforcement agents and any promises
that were made to him]” (People v Wall, 38 AD3d 1341, 1341, lv denied
9 NY3d 852; see People v Archie, 78 AD3d 1560, 1562, lv denied 16 NY3d
                          -2-                  656
                                         KA 10-01006

856).




Entered:   June 8, 2012         Frances E. Cafarell
                                Clerk of the Court
