Opinion
June 13, 1991
Appeal from the County Court of Montgomery County (Aison, J.).
In January 1987, defendant, a passenger in a vehicle stopped by the State Police for speeding on the Thruway in the Town of Glen, Montgomery County, was arrested after a search of the vehicle revealed a brown bag containing cocaine. Defendant was subsequently indicted for criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the seventh degree. Following a suppression hearing, defendant's motion to suppress the evidence seized from the car was denied. Defendant then pleaded guilty to criminal possession of a controlled substance in the second degree in full satisfaction of the indictment. After sentencing, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that, inter alia, he was not provided with the preliminary hearing testimony of one of the arresting officers, Trooper Octavio Santiago. These appeals followed from the order denying that motion and from the judgment of conviction.
Initially, we reject defendant's contention on this appeal that the People were required to make the Grand Jury testimony of Santiago available to him as Rosario material (see, People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) prior to the suppression hearing. Where, as here, no request is made for such testimony pursuant to CPL 240.44, no legal error may be claimed. The People's burden to supply Rosario material is of course different at trial (see, CPL 240.45; People v Ranghelle, 69 N.Y.2d 56).
Equally unavailing is defendant's assertion that the People's failure to make available Santiago's preliminary hearing testimony constituted a violation of his right to Brady material (see, Brady v Maryland, 373 U.S. 83). While defendant claims that Santiago's testimony at the preliminary hearing was inconsistent with his testimony given at the suppression hearing and that it was, thus, exculpatory, we cannot conclude that the failure to supply the earlier testimony should be charged to the People. Defendant, who was present at the preliminary hearing, was aware of Santiago's inconsistent testimony and had equal access to such testimony. Thus, the People should not have an obligation to provide it to defendant (see, e.g., People v Grissom, 128 Misc.2d 246, 247).
Finally, defendant's contention that the physical evidence was seized from the car as the result of an illegal stop based upon a "drug courier profile" is wholly unsupported by the record. Santiago testified that he and his partner pursued and stopped the vehicle after it was determined, through the use of radar, that it was traveling at an excessive speed of 65 miles per hour. Thereafter, the operator consented to the search of the car. In view of the foregoing undisputed testimony, defendant's argument must fail.
Casey, J.P., Weiss, Mikoll and Crew III, JJ., concur. Ordered that the judgment and order are affirmed.