People v. Mikolajczyk

Memorandum: The prosecutor was not obligated to seek a superseding indictment when he learned, immediately before the victim was to testify at trial, that the victim had lied to the Grand Jury about the location of the *1043robbery. The location of the robbery is not a material element of the crime (cf., People v Pelchat, 62 NY2d 97). Moreover, the prosecutor informed Supreme Court and defense counsel about the false Grand Jury testimony as soon as possible after learning of it, and defense counsel cross-examined the victim at length about his motive for changing his testimony.

Defendant argues that he was prejudiced because the People produced a previously-undisclosed witness, who testified that she was an eyewitness to the robbery. Defendant neither objected to the testimony of the witness on the basis of surprise nor did he request a continuance for the purpose of conducting an independent investigation. Consequently, defendant failed to preserve his present argument for our review (see, CPL 470.05 [2]).

Defendant was afforded effective assistance of counsel. The verdict is supported by sufficient evidence and is not against the weight of the evidence. Although a different finding would not have been unreasonable, we cannot conclude that the jury "failed to give the evidence the weight it should be accorded” (People v Bleakley, 69 NY2d 490, 495). (Appeal from Judgment of Supreme Court, Erie County, Sprague, J. — Robbery, 2nd Degree.) Present — Pine, J. P., Lawton, Fallon, Callahan and Doerr, JJ.