People v. Turner

Decision Date19 March 2001
Citation281 A.D.2d 568,723 N.Y.S.2d 43
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>HERMAN TURNER, Appellant.
CourtNew York Supreme Court — Appellate Division

S. Miller, J. P., Friedmann, H. Miller and Smith, JJ., concur.

Ordered that the judgment is affirmed.

During the People's case, the prosecutor indicated that he would call a witness he had previously declared would not be called. The prosecutor also stated that in addition to the Rosario material (see, People v Rosario, 9 NY2d 286, cert denied 368 US 866) previously produced, an audiotape of the witness's conversation with police might exist, but that it would be in the archives due to the age of the case and take at least a week to produce. The trial court responded that it would not allow the witness to testify unless the defendant waived any Rosario objection. The defendant's counsel did so, noting that he believed the witness possessed exculpatory information, and that his decision was based upon trial strategy. At the conclusion of the evidence, but before summations, the prosecution produced the audiotape.

Contrary to the defendant's contention, his attorney effectively and explicitly waived any objection based upon a possible Rosario violation (see, People v Brown, 90 NY2d 872; People v Booker, 158 AD2d 700). The defendant's contention that his waiver became ineffectual once the audiotape was found and, thus, that he should have been allowed to recall the witness was not preserved for appellate review (see, CPL 470.05 [2]). In any event, the trial court's denial of the application to recall the witness was a provident exercise of its discretion (see, People v Leon, 186 AD2d 587).

The defendant's remaining contentions are without merit.

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5 cases
  • People v. Turner
    • United States
    • New York Court of Appeals
    • 17 Noviembre 2005
    ...trial counsel was ineffective for failing to preserve the issue. The Appellate Division affirmed defendant's conviction (281 A.D.2d 568, 723 N.Y.S.2d 43 [2d Dept.2001]), and a Judge of this Court denied leave to appeal. Defendant applied to the Appellate Division for a writ of error coram n......
  • People v. Tomaski
    • United States
    • United States State Supreme Court (New York)
    • 9 Julio 2012
    ...issue was not preserved and was not meritorious. The Appellate Division affirmed the defendant's conviction, People v. Turner, 281 A.D.2d 568, 723 N.Y.S.2d 43 (2nd Dept.2001). It was after a writ of coram nobis was granted that the Appellate Division considered the Statute of Limitations is......
  • People v. Turner
    • United States
    • New York Supreme Court Appellate Division
    • 19 Marzo 2001
  • People v. Tarrant
    • United States
    • New York Supreme Court Appellate Division
    • 19 Marzo 2001
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