Opinion
December 17, 1991
Appeal from the Supreme Court, Bronx County, Bonnie Wittner, J.
On June 1, 1989, defendant and Dennis Jackson attacked Leroy Showard and, while Jackson beat him with a baseball bat, defendant repeatedly stabbed him, resulting in Showard's death.
On appeal, defendant claims that the withholding of an eyewitness' statement to an Assistant District Attorney constitutes a violation of People v Rosario ( 9 N.Y.2d 286, cert denied 368 U.S. 866) and mandates reversal. We have examined the document that allegedly discloses the existence of such a statement and find no support for defendant's claim.
We also find no merit to defendant's claim that he was prejudiced by the prosecutor's announcement midtrial that he did not intend to use defendant's custodial statements on the direct case, and by the court's decision to preclude defendant from using them on cross-examination of the detective who took the statement. Counsel articulated no objection to this development in the trial, and never sought any relief from the trial court. Thus, defendant has failed to preserve the issue for review (CPL 470.05; People v Nuccie, 57 N.Y.2d 818). Nor does the record support defendant's contention that the prosecutor's actions were a deliberate ploy to adversely affect his defense (see, e.g., People v Rice, 69 N.Y.2d 781; People v Jiminez, 79 A.D.2d 442).
Finally, the court correctly declined to charge the lesser included offense of manslaughter in the second degree. No reasonable view of the evidence would support a finding that defendant acted only recklessly, but not with depraved indifference to human life, when he repeatedly stabbed the deceased (People v Jenkins, 177 A.D.2d 268).
Concur — Carro, J.P., Rosenberger, Ellerin, Kupferman and Ross, JJ.