Opinion
September 17, 1992
Appeal from the Supreme Court, Bronx County (Robert G. Seewald, J.).
The prosecutor was not required to charge the Grand Jury with respect to circumstantial evidence since the evidence offered was both direct and circumstantial (People v Morales, 183 A.D.2d 570).
The trial court's annotation of the verdict sheet, indicating factual distinctions among the various, otherwise identical counts does not constitute error under People v Nimmons ( 72 N.Y.2d 830) and People v Kelly ( 76 N.Y.2d 1013) in view of counsel's implicit agreement that some annotation was necessary. Assuming, arguendo, that no agreement existed, People v Sotomayer ( 79 N.Y.2d 1029) does not compel a contrary result, since here no statutory elements were included, and thus no risk incurred of skewing the deliberative process (see, People v Melendez, 160 A.D.2d 739, 740, lv denied 76 N.Y.2d 792). We find the evidence contested by defendant on appeal to have been of marginal relevance and in view of the overwhelming evidence of defendant's guilt, it could not have affected the verdict. Any negative inference was effectively neutralized by effective cross-examination which we note resulted in defendant's acquittal of five of the twenty-seven counts submitted to the jury.
The investigator's report provided to counsel near the conclusion of the People's case did not constitute Rosario material (see, People v Goldman, 175 A.D.2d 723, lv denied 78 N.Y.2d 1076; People v Matos, 158 A.D.2d 959, lv denied 75 N.Y.2d 968), and even if it did, its belated production did not substantially prejudice defendant so as to require reversal (see, People v Ranghelle, 69 N.Y.2d 56, 59, 63). Moreover, we reject defendant's argument that the court denied his request to have the witness who prepared the report recalled. The record reveals instead that the court urged counsel to first consult with the actual source of the report, who had not testified, rather than the witness in question, in order to ascertain the relevant facts, particularly in light of the People's representation that certain prejudicial information might come to light. After speaking with that individual, counsel declined to call him, did not renew his prior request, and never sought any further remedy.
Concur — Rosenberger, J.P., Asch, Kassal and Rubin, JJ.