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

1310
KA 10-00803
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RASHEED MILTON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered March 24, 2010. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault (two
counts), criminal possession of a weapon in the third degree, and
unlawful imprisonment in the second degree.

     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, inter alia, two counts of predatory sexual
assault (Penal Law § 130.95 [1] [b]; [3]). Defendant contends that
the People committed a Brady violation inasmuch as they failed to
inform him that one of the investigating police officers who testified
at trial had a second job as a private investigator for an agency that
is periodically retained by the law firm representing the victim in a
personal injury action arising out of the incident underlying the
conviction. We reject that contention. Even assuming, arguendo, that
such information constituted Brady material on the ground that it
could be used to impeach the officer’s testimony, we conclude that
there was no “reasonable possibility that the outcome of the trial
would have differed had [that information] been [disclosed]” (People v
Scott, 88 NY2d 888, 891; see People v Vilardi, 76 NY2d 67, 77).

     Defendant’s further contention that he was deprived of a fair
trial based on prosecutorial misconduct is not preserved for our
review (see CPL 470.05 [2]) and, in any event, that contention is
without merit. “Reversal on the ground[] of prosecutorial misconduct
‘is mandated only when the conduct has caused such substantial
prejudice to the defendant that he [or she] has been denied due
process of law’ ” (People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d
711), and that is not the case here. We reject defendant’s contention
                                 -2-                         1310
                                                        KA 10-00803

that he was denied effective assistance of counsel. Viewing the
evidence, the law and the circumstances of this case in totality and
as of the time of the representation, we conclude that defendant
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147). We have considered defendant’s remaining contentions
and conclude that they are without merit.




Entered:   December 30, 2011                   Frances E. Cafarell
                                               Clerk of the Court
