685 N.Y.S.2d 249, People v. Defina

Citation:685 N.Y.S.2d 249
Party Name:People v. Defina
Case Date:December 28, 1998
Court:New York Supreme Court Appelate Division, Second Department
 
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Page 249

685 N.Y.S.2d 249

1998 N.Y. Slip Op. 11,560

The PEOPLE, etc., Respondent,

v.

Anthony DEFINA, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 28, 1998.

       Kathryn E. Leighton, Long Beach, N.Y., for appellant.

       Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Ann Bordley of counsel), for respondent.

       LAWRENCE J. BRACKEN, J.P., JOHN COPERTINO, WILLIAM C. THOMPSON and LEO F. McGINITY, JJ.

       MEMORANDUM BY THE COURT.

       Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Hall, J.), dated January 23, 1998, which denied his motion pursuant to CPL 440.10 to vacate his judgment of conviction.

       ORDERED that the order is affirmed.

       The defendant argues that the People's failure to turn over message number 5 on a "Sprint Tape", was a violation of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, since the message contained statements made by prosecution witnesses. Contrary to the defendant's contention, to the extent that message number 5 contained a statement by a prosecution witness relaying information told to him by an anonymous person, it did not constitute Rosario material. The right to inspect statements of a prosecution witness is limited to those statements relevant to the subject matter of the witness's testimony (see, People v. Rios, 182 A.D.2d 843, 582 N.Y.S.2d 798; see also, People v. Poole, 48 N.Y.2d 144, 148-149, 422 N.Y.S.2d 5, 397 N.E.2d 697). As no testimony concerning the anonymous person was elicited during the direct examination of the prosecution witnesses, the People were not obligated to make that portion of message number 5 available to the defendant (see, People v. Rios, supra; People v. Bailey, 200 A.D.2d 677, 606 N.Y.S.2d 757; People v. Melendez, 178 A.D.2d 366, 577 N.Y.S.2d 815; People v. Goldman, 175 A.D.2d 723, 573 N.Y.S.2d 282; cf., People v. Perez, 65 N.Y.2d 154, 490 N.Y.S.2d 747, 480 N.E.2d 361).

       The defendant's remaining contentions are without merit or, to the extent that they relate to any actual error, do not warrant reversal.

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