People v. Boswell

• Decision Date: 10 May 1993
• Citation: 193 A.D.2d 690,598 N.Y.S.2d 34
• Parties: The PEOPLE, etc., Respondent, v. Keith BOSWELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 34

598 N.Y.S.2d 34

193 A.D.2d 690

The PEOPLE, etc., Respondent, v. Keith BOSWELL, Appellant.

Supreme Court, Appellate Division Second Department.

May 10, 1993.

Calvin C. Saunders, New York City, for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Gary Fidel, and Emil Bricker, of counsel), for respondent.

Before THOMPSON, J.P., and EIBER, RITTER and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered March 3, 1989, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant initially contends that he was deprived of a fair trial by the prosecution's failure to give him notice, pursuant to CPL 710.30, of its intent to call as a witness a cellmate to whom he had made incriminating statements. However, in light of the defendant's failure to raise this contention at trial, it is unpreserved for appellate review (see, CPL 470.05[2]. In any event, the evidence indicates that this witness, who had initially contacted the police with the information regarding the statements nearly three months after the defendant had been arraigned, and who had subsequently arranged for favorable treatment on pending charges against him in exchange for his testimony, was not an "agent" of the police at the time the statements were made for the purposes of warranting CPL 710.30 notice (see, CPL 710.30[1][a]; People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306; People v. Abdullah, 134 A.D.2d 503, 521 N.Y.S.2d 286; People v. Duffy, 124 A.D.2d 258, 508 N.Y.S.2d 267; People v. Farley, 120 A.D.2d 761, 501 N.Y.S.2d 497). Moreover, inasmuch as the statements in question were uttered more than one month after the defendant had been arraigned, the prosecution could not possibly have timely complied with the statutory notice provision (see, CPL 710.30[2]; People v. Whitaker, 106 A.D.2d 594, 483 N.Y.S.2d 100).

The defendant's contention that the prosecution's failure to furnish two DD-5 complaint follow-up forms that detailed this information constituted a Rosario violation (see, 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) with respect to the testimony of the investigating officer is without merit. The prosecution had no intention of and, in fact, did not elicit any information in this vein during the investigating officer's testimony. Accordingly, these forms do not merit characterization as Rosario material with respect to this witness (see, CPL 240.45[1][a]; People v. Watkins, 157 A.D.2d 301, 313, 556 N.Y.S.2d 541). Moreover, inasmuch as the forms, which were turned over subsequent to the officer's testimony but before that of the cellmate, are more properly characterized as Rosario material with respect to the cellmate, the defendant was not unduly prejudiced by the delay in receiving this material, given the opportunity he was offered to adequately assess it in preparation for cross-examination of the cellmate (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134; People v. Witherspoon, 156 A.D.2d 306, 549 N.Y.S.2d 6, aff'd 77 N.Y.2d 95, 564 N.Y.S.2d 992, 566 N.E.2d 119, cert. denied sub nom. Carter v. New York, 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662).

The defendant's contention that the evidence adduced at trial was legally insufficient to establish his guilt for murder in the second degree and criminal possession of a weapon in the second...