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

389
KA 11-00313
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALONZO MADISON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THOMAS E. ANDRUSCHAT, EAST AURORA, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered February 10, 2011. The judgment convicted
defendant, upon a nonjury verdict, of criminal contempt in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: In appeal Nos. 1 and 2, defendant appeals from
separate judgments each convicting him upon a nonjury verdict of
criminal contempt in the second degree (Penal Law § 215.50 [3]). In
appeal No. 3, defendant appeals from a judgment convicting him upon a
nonjury verdict of assault in the third degree (§ 120.00 [1]) and
harassment in the second degree (§ 240.26 [1]). With respect to all
three appeals, defendant failed to preserve for our review his
contention that the evidence is legally insufficient to support his
conviction. At the close of the People’s case, defendant moved to
dismiss the assault count, but did not raise the specific grounds
advanced on appeal (see People v Gray, 86 NY2d 10, 19; People v Beard,
100 AD3d 1508, 1509), and he failed to make any motion regarding the
criminal contempt or harassment counts (see People v Prescott, 286
AD2d 898, 898, lv denied 97 NY2d 686). Further, defendant did not
renew his motion for a trial order of dismissal after presenting proof
(see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678; People
v Youngs, 101 AD3d 1589, 1590). In any event, we conclude that
“viewing the facts in a light most favorable to the People, there is a
valid line of reasoning and permissible inferences from which [Supreme
Court] could have found the elements of the crime[s] proved beyond a
reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [internal
quotation marks omitted]).

     We reject defendant’s contention in all three appeals that
                                 -2-                           389
                                                         KA 11-00313

counsel was ineffective because he failed to object to leading
questions, to the introduction of prejudicial photographs, or to
hearsay testimony, and because he permitted the introduction of
uncertified medical records. Contrary to defendant’s contention, the
medical records were in fact certified and the photographs of the
victim’s injuries were properly admitted in evidence because they were
relevant to the physical injury element of the assault count,
corroborated the victim’s testimony, and illustrated the medical
records (see People v Dogan, 170 AD2d 955, 955, lv denied 78 NY2d 965;
see also People v Pobliner, 32 NY2d 356, 369, rearg denied, 33 NY2d
657, cert denied 416 US 905; People v Brakefield, 156 AD2d 1004, lv
denied 75 NY2d 917). With respect to defense counsel’s failure to
object to leading questions or to hearsay testimony, defendant did not
“meet his burden of establishing the absence of any legitimate
explanations for” that failure (People v Morrison, 48 AD3d 1044, 1045,
lv denied 10 NY3d 867; see People v Benevento, 91 NY2d 708, 712-713),
particularly in the context of this nonjury trial (see generally
People v Howard, 101 AD3d 1749, 1750-1751; People v Kolon, 37 AD3d
340, 342, lv denied 8 NY3d 947; People v Stephens, 254 AD2d 105, 105,
lv denied 93 NY2d 879).

     Contrary to the further contention of defendant in all three
appeals, the People did not violate Brady or CPL article 240 with
respect to the disclosure of certain telephone records. The telephone
records do not fall within any of the enumerated categories of
property to which a defendant is entitled pursuant to CPL 240.20 (1)
and, in any event, the People provided those records to defendant
prior to trial, and defense counsel utilized them in cross-examining
the victim. Thus, defendant “failed to establish that he suffered any
actual prejudice from the late disclosure” (People v Jacobson, 60 AD3d
1326, 1328, lv denied 12 NY3d 916). Further, contrary to defendant’s
apparent contention, the People had no duty to obtain the subscriber
information on defendant’s behalf (see People v Hayes, 17 NY3d 46, 51-
52, cert denied ___ US___, 132 S Ct 844).

     We agree with defendant’s contention in appeal Nos. 1 and 2,
however, that the court should have granted that part of his CPL
330.30 motion seeking to set aside the verdict with respect to the
criminal contempt convictions, and that he is entitled to a new trial
on those counts. To set aside a verdict pursuant to CPL 330.30 (3), a
defendant must prove that “there is newly discovered evidence: (1)
which will probably change the result if a new trial is granted; (2)
which was discovered since the trial; (3) which could not have been
discovered prior to trial; (4) which is material; (5) which is not
cumulative; and, (6) which does not merely impeach or contradict the
record evidence” (People v Wainwright, 285 AD2d 358, 360; see People v
Salemi, 309 NY 208, 215-216, cert denied 350 US 950; People v
McCullough, 275 AD2d 1018, 1019, lv denied 95 NY2d 936).

     Here, the newly discovered evidence consists of subscriber
information for two prepaid cell phone numbers, and call records from
another telephone number. Those telephone numbers are material
because they appear in the victim’s telephone records at the times
that defendant allegedly called her in violation of the orders of
                                 -3-                           389
                                                         KA 11-00313

protection. The victim testified at trial that she did not recognize
two of the telephone numbers in her telephone records during the
relevant times. After the trial, defendant determined that the
numbers both belonged to the victim’s close friend, who had also
accused defendant of harassment. Other incoming telephone numbers
that appeared in the victim’s telephone records during the times that
defendant allegedly called her belonged to the victim’s son and
another alleged friend of the victim. We conclude that the evidence
that the purported telephone calls from defendant were actually made
from numbers registered to individuals associated with the victim
“create[d] a probability that had such evidence been received at the
trial the verdict would have been more favorable to the defendant”
(CPL 330.30 [3]; see People v Barreras, 92 AD2d 871, 871; People v
Ramos, 166 Misc 2d 515, 522-523, affd 232 AD2d 583). The evidence is
not cumulative and, contrary to the contention of the People, does not
“merely impeach or contradict the record evidence” (Wainwright, 285
AD2d at 360; cf. People v White, 272 AD2d 872, 872-873, lv denied 95
NY2d 859). Rather, the evidence suggests that the victim’s testimony,
which is the only evidence supporting the criminal contempt
convictions, may have been fabricated or, at the very least, mistaken.

     The question thus becomes whether defendant could have discovered
the material earlier in the exercise of reasonable diligence (see CPL
330.30 [3]; see generally People v Robertson, 302 AD2d 956, 958, lv
denied 100 NY2d 542). Although defense counsel clearly could have
subpoenaed subscriber information or telephone records prior to trial,
we conclude that his ability to do so was frustrated by the People’s
refusal to specify the precise times of the alleged phone calls
received by the victim and the numbers from which or to which
defendant allegedly called, and by their delay in turning over the
victim’s telephone records from the dates in question. The victim’s
telephone records reflect a myriad of incoming and outgoing calls from
various numbers on the dates at issue and, without any specificity as
to the numbers alleged to have been used by defendant or the times he
allegedly called the victim, defendant would have had to engage in a
“fishing expedition” by subpoenaing the subscriber information and
call records for multiple numbers. It was only during the course of
the trial that defendant learned the times of the offending calls and
the telephone numbers from which he allegedly called the victim, at
which point it was too late to subpoena the relevant records. We thus
agree with defendant that the newly discovered evidence was not
available to him prior to trial (see Ramos, 166 Misc 2d at 519-523;
cf. People v Matthew, 274 AD2d 485, 485-486). We therefore reverse
the judgments in appeal Nos. 1 and 2, and order a new trial on those
counts.

     Contrary to the contention of defendant in appeal No. 3, however,
we see no basis to disturb his conviction of assault in the third
degree and harassment in the second degree inasmuch as the newly
discovered evidence does not relate to those counts. Although the
newly discovered evidence raises questions about the victim’s
veracity, her testimony concerning the assault incident was credited
by the court, defendant admitted that he was involved in a
confrontation with the victim on that date, and the victim’s version
                                 -4-                           389
                                                         KA 11-00313

of events was corroborated by contemporaneous medical records and
photographs of her injuries.

     Finally, there is no merit to defendant’s contention that the
court should have convicted him of harassment in the second degree
instead of assault in the third degree. It is well established that
harassment in the second degree is not a lesser included offense of
assault in the third degree (see People v Moyer, 27 NY2d 252, 253-254;
see generally People v Hayes, 43 AD2d 99, 102, affd 35 NY2d 907, rearg
denied 37 NY2d 937; People v Sipley, 209 AD2d 864, 865-866, lv denied
84 NY2d 1038).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
