Opinion
May 16, 2000.
Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered April 29, 1998, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 21 years to life, unanimously affirmed.
Penny Rosenberg, for respondent.
Jonathan M. Kirshbaum, for defendant-appellant.
Before: Williams, J.P., Lerner, Rubin, Saxe, Buckley, JJ.
Defendant's claim concerning the alleged nondisclosure of purportedRosario material is unpreserved and abandoned (see, People v. Graves, 85 N.Y.2d 1024, 1027), and we decline to review it in the interest of justice. When the absence of the material in question came to light during trial, defendant insisted on the drastic and premature remedy of a mistrial (see, People v. Rice, 75 N.Y.2d 929, 932-933), even though the prosecutor had explained that the material was readily accessible and could be produced expeditiously, and, after the mistrial motion was properly denied, defendant made no further mention of the issue. Moreover, defendant's claim is unreviewable on the existing record (see,People v. Kinchen, 60 N.Y.2d 772; People v. Sierra, 222 A.D.2d 216, lv denied 87 N.Y.2d 977), defendant having forfeited the opportunity to develop a factual basis for his claim that the notes in question constituted Rosario material. On the present record, it cannot be determined whether the material, allegedly consisting of a list of questions to be asked at trial, was Rosario material in the first place, because it cannot be determined whether the prosecutor's questions incorporated factual statements made by the witness (compare, People v. Dowling, 266 A.D.2d 18, 698 N.Y.S.2d 11, and People v. Gourgue, 239 A.D.2d 357, with People v. Hodge, 237 A.D.2d 234, lv denied 90 N.Y.2d 894).
Defendant's contention that the sentencing court should have made a further inquiry of his unelaborated general challenge to the allegations in the predicate statement is unpreserved (see, People v. Pellegrino, 60 N.Y.2d 636; People v. Harris, 246 A.D.2d 401, lv denied 91 N.Y.2d 926), and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant was properly adjudicated a persistent violent felony offender (see, People v. Jones, 183 A.D.2d 471,lv denied 80 N.Y.2d 896); People v. Harris, supra).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.