Opinion
December 23, 1994
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Pine, J.P., Lawton, Fallon, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court did not abuse its discretion in striking the entire testimony of a defense alibi witness whose name was not furnished to the People as a witness defendant intended to call to establish her alibi defense (see, CPL 250.20; People v Brown, 167 A.D.2d 847; cf., People v Cuevas, 67 A.D.2d 219, 225-226). Contrary to the contention of defendant, the witness's entire testimony related to the alibi defense.
Furthermore, the court did not err in denying the motion of defendant to set aside the verdict on the ground of prosecutorial delay in furnishing Rosario material. The record establishes that the omission was not deliberate and any prejudice to defendant was not substantial (see, People v Ranghelle, 69 N.Y.2d 56, 63; People v Garrett, 177 A.D.2d 1, 3, lv denied 79 N.Y.2d 1000).
Lastly, defendant contends that her absence from the side-bar discussion with a prospective juror concerning the fact that the juror had previously been charged with welfare fraud requires reversal. We disagree. Immediately after the side-bar discussion, the prosecutor exercised a peremptory challenge and the prospective juror was excused. We conclude that, under the circumstances of this case, "defendant['s] presence at the side-bar questioning would have been of no benefit" and defendant's "absence during such questioning would not have had a substantial effect on [defendant's] ability to defend" (People v Sloan, 79 N.Y.2d 386, 393; see, People v Velasco, 77 N.Y.2d 469, 473; People v Hines, 205 A.D.2d 468, lv denied 84 N.Y.2d 868; People v Castro-Garcia, 203 A.D.2d 899, lv denied 83 N.Y.2d 965; People v Arnold, 201 A.D.2d 965, 965-966, lv denied 83 N.Y.2d 849).