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

360
KA 09-02133
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BURNIE DANIELS, DEFENDANT-APPELLANT.


JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO, FOR
DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered August 4, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal mischief in the third
degree and petit larceny.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal mischief in the third degree (Penal
Law § 145.05 [2]) and petit larceny (§ 155.25). Viewing the evidence
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), we reject defendant’s contention that the evidence is
legally insufficient to support the conviction (see generally People v
Bleakley, 69 NY2d 490, 495). Furthermore, we conclude that defendant
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147) and, viewing the evidence in light of the elements of
the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we also conclude that defendant’s contention that the verdict is
against the weight of the evidence lacks merit (see generally
Bleakley, 69 NY2d at 495).

     We agree with defendant that County Court erred in allowing the
People to elicit testimony that defendant invoked his right to counsel
(see People v Nicholas, 286 AD2d 861, 862, affd 98 NY2d 749; People v
Morrice, 61 AD3d 1390, 1391; People v Hunt, 18 AD3d 891, 892), but we
conclude that reversal is not required; the error is harmless beyond a
reasonable doubt “inasmuch as there is no reasonable possibility that
the error[] might have contributed to defendant’s conviction” (People
v Capers, 94 AD3d 1475, 1476, lv denied 19 NY3d 971 [internal
quotation marks omitted]; see People v Kithcart, 85 AD3d 1558, 1559-
1560, lv denied 17 NY3d 818; see generally People v Crimmins, 36 NY2d
                                 -2-                           360
                                                         KA 09-02133

230, 237). We also reject defendant’s contention that he is entitled
to a new trial based on a Brady violation. “ ‘[W]hile the People
unquestionably have a duty to disclose exculpatory material in their
control,’ a defendant’s constitutional right to a fair trial is not
violated when, as here, he is given a meaningful opportunity to use
the allegedly exculpatory material . . . as evidence during his case”
(People v Cortijo, 70 NY2d 868, 870; see People v Comfort, 60 AD3d
1298, 1300, lv denied 12 NY3d 924; People v Barney, 295 AD2d 1001,
1002, lv denied 98 NY2d 766).

     Finally, we reject defendant’s contention that he is entitled to
a new trial based on an alleged Rosario violation. Even assuming,
arguendo, that all of the disputed evidence is Rosario material (see
People v Turner, 233 AD2d 932, 933, lv denied 89 NY2d 1102; People v
Stern, 226 AD2d 238, 239-240, lv denied 88 NY2d 969, reconsideration
denied 88 NY2d 1072), we conclude that reversal is not warranted here.
With respect to the evidence that defendant contends was not timely
disclosed, we conclude that defendant failed to make a showing that
there is “a reasonable possibility that the result at trial would have
been different if [that] material[] had been timely disclosed” (People
v Williams, 50 AD3d 1177, 1180; see CPL 240.75). With respect to the
evidence disclosed only after trial, we conclude that defendant failed
to “show[] ‘that there is a reasonable possibility that the
non-disclosure materially contributed to the result of the trial’ ”
(Williams, 50 AD3d at 1179, quoting CPL 240.75).




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
