Opinion
June 29, 1992
Appeal from the Supreme Court, Queens County (Appelman, J.).
Ordered that the judgment is affirmed.
We reject the defendant's contention that the trial court's sanction for the People's loss of Rosario material, to wit, a pretrial statement by the arresting officer (see, People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866), was inadequate. While a trial court must impose a sanction where the People fail to exercise due care in preserving Rosario material and the defendant is prejudiced thereby, the specific sanction to be imposed is within the sound discretion of the trial court (see, People v. Wallace, 76 N.Y.2d 953; People v. Martinez, 71 N.Y.2d 937; People v. Kelly, 62 N.Y.2d 516). In this case, the preclusion of the arresting officer's testimony was a sufficient sanction. There was no indication of prosecutorial fault, and any prejudice to the defendant was removed by the preclusion of that testimony. The failure to also preclude the undercover police officer's testimony was not an improvident exercise of discretion (see, People v. Martinez, supra; People v. Kelly, supra). Harwood, J.P., Balletta, Rosenblatt and Santucci, JJ., concur.