People v Clarence Prude

People v Prude 2003 NY Slip Op 20096 [2 AD3d 1320] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Clarence Prude, Appellant. (Appeal No. 2.)

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Appeal from an order of Monroe County Court (Marks, J.), dated August 28, 2001, which denied defendant's CPL 440.10 motion seeking to vacate the judgment of conviction.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from an order denying his CPL 440.10 motion seeking to vacate the judgment of conviction based on his contention that the prosecutor failed to disclose that a witness at his murder trial was granted partial immunity for his grand jury testimony and that the prosecutor affirmatively misrepresented that fact to the jury. County Court properly denied defendant's motion on the ground that sufficient facts appear on the record to permit review of defendant's contention on direct appeal (see CPL 440.10 [2] [b]). Defendant contends that he did not become aware of the alleged immunity agreement until years after his trial, when he obtained a copy of the witness's testimony at the separate trial of a codefendant. Defendant and the codefendant, however, were jointly indicted following a single grand jury presentation at which the witness testified. Those minutes would confirm the nature of the immunity that the witness received, allowing for review of defendant's present contention on direct appeal. Present—Pigott, Jr., P.J., Pine, Wisner, Hurlbutt and Gorski, JJ.