Opinion
November 16, 1990
Appeal from the Oneida County Court, Auser, J.
Present — Doerr, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's claim of entitlement to a charge on the defense of justification has not been preserved for our review because he did not request that charge nor did he except to the court's charge as given (see, People v. Pagan, 162 A.D.2d 999). Moreover, defendant was not entitled to a justification charge because the proof at trial did not adequately raise that issue as a question of fact for the jury (People v. Watts, 57 N.Y.2d 299, 301).
Defendant failed to preserve for our review his claim that the court's charge on identification was not sufficiently detailed (see, CPL 470.05). He neither requested a more expansive identification charge nor excepted to the court's charge as given. Further, we find the court's charge on identification to be legally sufficient (see, People v. Whalen, 59 N.Y.2d 273, 279).
The People's delay in turning over certain Rosario material (see, People v. Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert. denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, 15 N.Y.2d 765) does not require reversal because defendant was not "substantially prejudiced by the delay" (People v. Ranghelle, 69 N.Y.2d 56, 63; see also, People v. Martinez, 71 N.Y.2d 937). Similarly, a reversal is not mandated by the delay in providing certain exculpatory information to defendant inasmuch as the material was given to defense counsel in sufficient time to enable him to effectively cross-examine the witnesses (see, Brady v. Maryland, 373 U.S. 83). The evidence was disclosed prior to the commencement of trial "and there was no indication that earlier disclosure would have substantially affected the nature of the evidence or altered defendants' trial strategy" (People v. Clark, 89 A.D.2d 820, cert. denied 459 U.S. 1090).
The trial court properly denied defendant's motion for a trial order of dismissal at the close of the People's case because the evidence, viewed in the light most favorable to the People, was "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10; 290.10 [1]; see, People v. Vasquez, 142 A.D.2d 698, 700-701, lv. denied 72 N.Y.2d 1050). Further, the jury verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).
We have reviewed defendant's remaining contentions and we find them either unpreserved for our review, or where preserved, to be lacking in merit.