Opinion
MOTION NO. (1384/14) KA 12-02110.
03-20-2015
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. EARNEST HUGHES, DEFENDANT-APPELLANT.
PRESENT: , SMITH, CARNI, LINDLEY, AND SCONIERS, JJ. (Filed Mar. 20, 2015.)
MEMORANDUM AND ORDER
Motion for reargument of the appeal is granted to the extent that, upon reargument, the memorandum and order entered January 2, 2015 (124 AD3d 1380) is amended by deleting the second paragraph of the memorandum and substituting the following paragraph:
Even assuming, arguendo, that the People committed a Brady violation by failing to produce the recording of the victim's 911 call prior to the suppression hearing, we conclude that the content of that call "was probative of the weight to be accorded to the witness[es'] identification, not to the suggestiveness of the showup procedure and, therefore, [the call] could not have impacted the decision to suppress the identification" (People v Whitted, 117 AD3d 1179, 1182, lv denied 23 NY3d 1026). Defendant's contention that the People committed a Rosario violation by failing to preserve a police officer's notes is unpreserved for our review because defendant did not object to the destruction of the notes or seek a sanction (see People v Rogelio, 79 NY2d 843, 844; People v Sanzotta, 191 AD2d 1032, 1032-1033). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).