Opinion
July 6, 1993
Appeal from the Supreme Court, Queens County (Chetta, J.).
Ordered that the judgment and the order are affirmed.
The prosecution is obligated to disclose evidence which is in its possession, is favorable to the defense, and is material either to guilt or punishment (see, People v. Delvecchio, 187 A.D.2d 726). "It is elementary that in order to be deemed Brady * * * material * * * that material must be within the possession, custody or control of the People and when the material at issue is not within the People's control, the rules of Brady * * * are not violated" (People v. Rodriguez, 155 A.D.2d 257, 259). In the instant case, there was no Brady violation since the People never possessed the material in question (see, People v. Forbes, 190 A.D.2d 816; People v. Simpson, 125 A.D.2d 347; CPL 240.44, 240.45 Crim. Proc.).
At trial, it was determined that two prosecution witnesses, both privately-employed security guards, had memo books. One of the witnesses recalled making a notation in his memo book regarding the incident for which the defendant was being prosecuted, while the other witness stated that he "possibly" made a notation. The defendant claims that the People's failure to discover and preserve the statements made by two prosecution witnesses constitutes a Rosario violation. We disagree. Since the notes were not made at the direction of the police department or were ever in the possession and control of the People, they did not constitute Rosario material (see, People v. Bailey, 73 N.Y.2d 812; Matter of Michael K., 168 A.D.2d 621).
We have considered the defendant's remaining contentions and find them to be unpreserved for appellate review or without merit. Thompson, J.P., Miller, Santucci and Joy, JJ., concur.