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

193
KA 09-02219
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GREGORY BERNARD, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


BETH A. RATCHFORD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered September 25, 2008. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of murder in the second degree
(Penal Law § 125.25 [1]) and, in appeal No. 2, he appeals from a
judgment convicting him upon a jury verdict of criminal possession of
a weapon in the second degree (§ 265.03 [3]). Defendant contends in
both appeals that the People failed to disclose Brady material in a
timely manner. We agree. We conclude, however, that the Brady
violation does not require reversal because the information was turned
over as Rosario material prior to jury selection, thus affording
defendant a “meaningful opportunity” to use the information during
cross-examination (People v Middlebrooks, 300 AD2d 1142, 1143, lv
denied 99 NY2d 630; see People v Cortijo, 70 NY2d 868, 870; People v
Abuhamra, 107 AD3d 1630, 1631, lv denied 22 NY3d 1038). Contrary to
defendant’s contention, there is no “reasonable probability that, had
the evidence been disclosed to [him]” prior to the Wade hearing,
“ ‘the result of the [hear]ing would have been different’ ” (People v
Chin, 67 NY2d 22, 33). Defendant failed to preserve for our review
his alternative contention that County Court erred in failing to
reopen the Wade hearing based upon the delayed disclosure (see People
v Clark, 28 AD3d 1231, 1232; People v Highsmith, 259 AD2d 1006, 1007,
lv denied 93 NY2d 925), and we decline to exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]).

     We reject the further contention of defendant that he was denied
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                                                            KA 09-02219

effective assistance of counsel by his attorney’s failure to request a
limiting instruction with respect to certain Molineux evidence.
Indeed, defense counsel “declined such an instruction on the record
after a colloquy with County Court in which it was clear that doing so
was part of a legitimate trial strategy” (People v Smith, 41 AD3d 964,
965, lv denied 9 NY3d 881), and we will not “second-guess” that
strategic decision on appeal (People v Cherry, 46 AD3d 1234, 1238, lv
denied 10 NY3d 839; see People v Williams, 107 AD3d 1516, 1516-1517,
lv denied 21 NY3d 1047; People v Copeland, 43 AD3d 1436, 1436-1437, lv
denied 9 NY3d 1032). Moreover, our review of the record as a whole
establishes that defense counsel provided meaningful representation
(see generally People v Baldi, 54 NY2d 137, 147).

     Finally, the sentence is not unduly harsh or severe.




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
