Opinion
December 5, 1995
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
Upon his arrest, defendant's codefendant was found with a police badge and portable radio. Both before and during the trial, defense counsel argued that the investigations regarding the badge may have generated undisclosed Rosario material, and requested that the court conduct an in camera review of those documents. However, defendant failed to establish a factual basis to support his claim, merely speculating that the witnesses might have been interviewed in this connection ( People v Poole, 48 N.Y.2d 144). The court was entitled to rely upon the representations of the prosecutor, who indicated that the complainant had only been interviewed by the officers in the case and that the Internal Affairs Division investigation essentially focused only on "where and how the particular police shield was lost or stolen". Moreover, during trial, defense counsel was afforded an opportunity to ask one of the police witnesses, out of the presence of the jury, whether he had been interviewed by Internal Affairs, but counsel never took advantage of this opportunity, nor did he seek to question the other police officer who arrested defendant. Since defendant forfeited the opportunity to develop a factual basis for his Rosario claim, he may not claim on appeal that the court improperly denied him an in camera review of the alleged Rosario material ( People v Farrell, 207 A.D.2d 560, lv denied 84 N.Y.2d 935; People v Chaudhry, 186 A.D.2d 48, lv denied 80 N.Y.2d 973).
Concur — Sullivan, J.P., Ellerin, Wallach, Rubin and Mazzarelli, JJ.