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

759
KA 13-00720
PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEITH L. WILLIAMS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered January 14, 2013. The judgment
convicted defendant, upon a jury verdict, of attempted robbery in the
first degree and assault in the second degree.

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

     Memorandum: On appeal from a judgment convicting him, upon a
jury verdict, of attempted robbery in the first degree (Penal Law
§§ 110.00, 160.15 [3]) and assault in the second degree (§ 120.05
[2]), defendant contends that Supreme Court erred in permitting the
victim to testify on redirect examination that he had made a pretrial
photographic identification of defendant because such testimony
constituted improper bolstering. We reject that contention. Here,
“defense counsel ‘open[ed] the door’ to such testimony by creating a
‘misimpression’ about the witness’s identification that was cured by
testimony concerning the photo identification” (People v Williams, 286
AD2d 918, 920, lv denied 97 NY2d 763; see People v Grimes, 289 AD2d
1072, 1072-1073, lv denied 97 NY2d 755).

     While we agree with defendant’s further contention that the court
erred in limiting his cross-examination of the victim (see generally
People v Wallace, 60 AD3d 1268, 1269, lv denied 12 NY3d 922), we
nevertheless conclude that the error is harmless beyond a reasonable
doubt. The evidence of guilt is otherwise overwhelming, and “ ‘there
is no reasonable possibility that [the] error[] might have contributed
to defendant’s conviction’ ” (Wallace, 60 AD3d at 1270, quoting People
v Crimmins, 36 NY2d 230, 237).

     We reject defendant’s contention that the People failed to
disclose certain Brady material, i.e., information underlying the
                                 -2-                           759
                                                         KA 13-00720

charges resolved by the victim’s guilty plea (see generally People v
Vilardi, 76 NY2d 67, 73; People v Loftin, 71 AD3d 1576, 1578). Absent
a connection to the crimes charged, information concerning those
underlying acts did not constitute Brady material, inasmuch as it was
collateral and “ ‘was not otherwise the kind of material required by
the courts to be supplied to defendant for use to impeach a witness’ ”
(People v Fyffe, 249 AD2d 938, 939, lv denied 92 NY2d 897). We note
in any event that the People provided defendant with the victim’s
prior criminal history before jury selection, and defendant was aware
of the charges that were satisfied by the victim’s guilty plea
inasmuch as defense counsel had ordered the transcripts of the plea
proceedings prior to trial (see Loftin, 71 AD3d at 1577).

     Defendant contends that the court failed to comply with the
procedure for disclosure of jury notes to counsel set forth in People
v O’Rama (78 NY2d 270). We reject defendant’s contention with respect
to one of the two notes at issue. “[T]he O’Rama procedure is not
implicated when the jury’s request is ministerial in nature and
therefore requires only a ministerial response” (People v Nealon, 26
NY3d 152, 161), and defendant has not established that the first jury
note at issue was a substantive inquiry. Instead, the note only
necessitated the ministerial action of informing the jury that a
requested item was not in evidence (see People v Ziegler, 78 AD3d 545,
546, lv denied 16 NY3d 838; see also People v Hammond, 84 AD3d 1726,
1727, lv denied 17 NY3d 816). Defendant failed to preserve for our
review his contention with respect to the second jury note at issue.
Where, as here, “counsel has meaningful notice of a substantive jury
note that has been read verbatim in open court, the court’s failure to
discuss the note or its intended response with counsel outside the
presence of the jury is not a mode of proceedings error because
counsel is not prevented from objecting or from participating
meaningfully” (People v Mack, 27 NY3d 534, 542), and thus preservation
is required. We decline to exercise our power to review defendant’s
contention with respect to the second jury note as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     We have considered defendant’s remaining contentions and conclude
that they are without merit.




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
