People v. Lopez

• Decision Date: 30 August 1993
• Citation: 601 N.Y.S.2d 708,196 A.D.2d 664
• Parties: The PEOPLE, etc., Respondent, v. Jose LOPEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 708

601 N.Y.S.2d 708

196 A.D.2d 664

The PEOPLE, etc., Respondent, v. Jose LOPEZ, Appellant.

Supreme Court, Appellate Division,

Second Department.

Aug. 30, 1993.

Ronna Gordon-Galchus, Kew Gardens, for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Gary Fidel and Pamela Lynam, of counsel), for respondent.

Before SULLIVAN, J.P., and BALLETTA, LAWRENCE and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flug, J.), rendered January 25, 1991, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In this case, which arises out of a so-called "buy and bust" operation, the defendant moved, prior to sentencing, pursuant to CPL 330.30, to set aside the verdict on the ground that a "Queens TNT Buy and Bust Tac Plan" was Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881) and the People's failure to disclose it constituted per se reversible error. However, the Rosario rule only involves "the use of a recorded prior statement which was made either by the witness himself or by an individual who directly heard the statement" (see, People v. Williams, 165 A.D.2d 839, 841, 560 N.Y.S.2d 220, affd on other grounds 78 N.Y.2d 1087, 578 N.Y.S.2d 870, 586 N.E.2d 53). Here, other than counsel's speculative assertion that the document had been prepared by the detective who had testified at the trial, no evidence was adduced to show who, in fact, had authored the document, and there is nothing on the face of the document which would indicate that it might have come from the testifying detective. Moreover, we note that, unlike a police officer's daily activity report, which is essentially an officer's statement as to what the officer actually did on a particular day and which has been held to be Rosario material (see, e.g., People v. Goins, 73 N.Y.2d 989, 540 N.Y.S.2d 994, 538 N.E.2d 346) the document in question merely sets forth a number of proposals for activity during the upcoming day, potentialities for the future which may or may not come to pass. Indeed, it contains no factual assertions about or descriptions of the drug transaction and arrest involved herein (see, e.g., People v. Watkins, 157 A.D.2d 301, 556 N.Y.S.2d 541; People v. Mills, 142 A.D.2d 653, 530 N.Y.S.2d 593; People v. Rios, 182 A.D.2d 843, 582 N.Y.S.2d 798). Accordingly, the trial court properly denied the motion, finding that there had been no Rosario violation (see, People v. Miller, 183 A.D.2d 790, 583 N.Y.S.2d 517; cf., People v. Vacante, 187 A.D.2d 470, 589 N.Y.S.2d 894).

Moreover, we find that the trial court did not err in failing to give an agency defense charge. Upon viewing the evidence in the light most favorable to the defendant (see, People v. Davis, 178 A.D.2d 424, 426, 577 N.Y.S.2d 410), we find that...