People v. Dixon

• Decision Date: 17 September 1990
• Parties: The PEOPLE, etc., Respondent, v. Rudolph DIXON, a/k/a Randolph Dixon, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 216

560 N.Y.S.2d 216

165 A.D.2d 832

The PEOPLE, etc., Respondent, v. Rudolph DIXON, a/k/a Randolph Dixon, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 17, 1990.

Philip L. Weinstein, New York City (John Gemmill, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Anthea H. Bruffee and Victor Barall, of counsel), for respondent.

Before BRACKEN, J.P., and BROWN, LAWRENCE and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), rendered February 25, 1987, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The record reveals that during the testimony of one of the arresting officers, defense counsel requested production of a police "buy-op" report, and suggested that the Assistant District Attorney supply the document the next day. The court acquiesced in counsel's proposal. The defendant's counsel stated the next day that he still had not received the report. The record contains no further reference to the production or nonproduction of the document. On appeal, the defendant contends that the People's alleged failure to produce the report requires reversal of his judgment of conviction. We disagree.

As we have recently held, since the People's failure to produce Rosario material may be subject to a variety of sanctions depending upon the nature of the violation (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134), "the mere request for material, without any other reference in the record, is not adequate to preserve the matter for appellate review" (see, People v. Rashid, 164 A.D.2d 951, 952, 560 N.Y.S.2d 58, 59 [2d Dept., 1990]; see also, People v. Woods, 156 A.D.2d 609, 549 N.Y.S.2d 116; People v. Battles, 141 A.D.2d 748, 529 N.Y.S.2d 1013). Where, as here, the defense counsel failed to request a specific remedy in consequence of the People's alleged noncompliance with his request (see, People v. Martinez, supra; People v. Haupt, 71 N.Y.2d 929, 528 N.Y.S.2d 808, 524 N.E.2d 129; People v. Provenzano, 154 A.D.2d 486, 547 N.Y.S.2d 228; People v. Wells, 144 A.D.2d 400, 533 N.Y.S.2d 936), and where the record is otherwise silent as to whether the material was produced, intelligent appellate review of the claim is...