Opinion
February 6, 1997.
Appeal by the defendant from a judgment of the County Court, "Westchester County (Rosen, J.), rendered April 21, 1995, convicting him of driving while intoxicated as a felony, aggravated unlicensed operation of a vehicle in the first degree, and failure to drive on the right side of the roadway, upon a jury verdict, and imposing sentence.
Before: Miller, J.P., Sullivan, Pizzuto and Goldstein, JJ.
Ordered that the judgment is affirmed.
The defendant contends that the statement of a bartender who observed him prior to the crime constituted Brady material. The People claim this statement was turned over to the defense, but the defense counsel does not recall receiving it. Without deciding whether the statement did in fact constitute Brady material, we cannot determine from this record whether the material was in fact withheld from the defense ( see, People v Ciro, 195 AD2d 568). "It was the appellant's burden to present a clear factual record for review" ( People v Cheney, 178 AD2d 1007; see, People v Marvin, 216 AD2d 930). Therefore, the defendant's claim that he was deprived of Brady material must be rejected.
The defendant's remaining contentions are unpreserved for appellate review or without merit.