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

753
KA 03-01616
PRESENT: CENTRA, J.P., SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES PENNINGTON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Erie County (Joseph S. Forma, J.), dated June 11,
2003. The order denied the motion of defendant pursuant to CPL
440.10.

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

     Memorandum: Defendant appeals from an order denying his pro se
motion pursuant to CPL article 440 seeking to vacate the judgment
convicting him of two counts of murder in the second degree (Penal Law
§ 125.25 [1], [2]). We previously affirmed that judgment of
conviction (People v Pennington, 217 AD2d 919, lv denied 87 NY2d 906),
and we now conclude that Supreme Court properly denied defendant’s
motion without conducting a hearing. Defendant contends that the
People abused the grand jury process by serving a subpoena after the
indictment had been issued. The court properly determined that,
although the People abused the grand jury process (see Matter of Hynes
v Lerner, 44 NY2d 329, 333, rearg denied 44 NY2d 950, cert denied 439
US 888; see generally People v Natal, 75 NY2d 379, 385, cert denied
498 US 862), defendant has not established any prejudice resulting
therefrom (see CPL 440.10 [1] [f]; see generally People v Jackson, 78
NY2d 638, 646; People v McNeill, 204 AD2d 975, 976, lv denied 84 NY2d
829). Defendant further contends that the People committed Rosario
and Brady violations by failing to turn over certain notes of the
prosecutor concerning interviews with various police witnesses. We
conclude, however, that defendant’s contention is based on an
incorrect reading of those notes. Indeed, based upon an accurate
reading of the notes, we conclude that they have no exculpatory value,
and that there was no “reasonable possibility that the failure to
disclose the [notes] contributed to the verdict” (People v Jackson, 78
                                 -2-                           753
                                                         KA 03-01616

NY2d 638, 649; see People v Fuentes, 12 NY3d 259, 263, rearg denied 13
NY3d 766).

     Defendant’s challenge to the admission of the testimony of the
Associate Chief Medical Examiner (hereafter, Medical Examiner) at
trial could have been raised on direct appeal, and thus the court
properly denied that part of his motion challenging that testimony
(see CPL 440.10 [2] [c]). In addition, the court properly determined
that defendant failed to establish that there was any discovery
violation with respect to autopsy notes and a death certification (see
CPL 440.30 [4] [b]; People v Vigliotti, 24 AD3d 1216, 1216).
Likewise, the court properly determined that defendant failed to
substantiate his allegation that a prosecution witness entered into an
unlawful agreement with defendant’s insurers (see CPL 440.30 [3] [b];
Vigliotti, 24 AD3d at 1216).

     We reject defendant’s contention that he received ineffective
assistance of counsel at trial. To the extent that defendant relies
on records that were introduced in evidence at trial in support of his
contention, we conclude that defendant could have raised that
contention on his prior appeal (see CPL 440.10 [2] [c]; People v
Mastowski, 63 AD3d 1589, 1590, lv denied 12 NY3d 927, reconsideration
denied 13 NY3d 837). To the extent that defendant relies on records
that defense counsel had in his possession but failed to use when
questioning the Medical Examiner, we conclude that his contention is
without merit. Specifically, the Medical Examiner testified at trial
that the victim was shot once in the abdomen and twice in the back.
Defendant contends that certain records not introduced in evidence at
trial raise a question whether the victim was shot more than once in
the front, rather than the back, and that defense counsel should have
used those records to challenge the testimony of the Medical Examiner
in order to support his justification defense. Defendant’s own expert
at trial, however, agreed with the Medical Examiner that there were
two entrance wounds to the victim’s back. Thus, if defense counsel
had attacked the findings of the Medical Examiner regarding the
entrance wounds to the back, he would also have been attacking the
credibility of defendant’s own expert. Defendant has therefore failed
to establish the absence of a strategic reason for defense counsel’s
failure to challenge the testimony of the Medical Examiner based on
records in defense counsel’s possession (see People v Rosado, 13 AD3d
902, 903-904, lv denied 4 NY3d 835).

     Defendant’s contention that the court erred in failing to submit
the two murder charges, i.e., for intentional murder and depraved
indifference murder, in the alternative was not raised in his CPL
440.10 motion and therefore is not properly before us (see generally
People v Brown, 217 AD2d 797, 798, lv denied 86 NY2d 872; People v
Green, 111 AD2d 349, 349). We have considered defendant’s remaining
contentions and conclude that they are without merit.


Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
