Opinion
March 10, 1994
Appeal from the Supreme Court, New York County (Daniel P. FitzGerald, J.).
Defendant's claim on appeal that the prosecutor's delayed disclosure of a document directed by the trial court to be redacted so as to preserve only a portion deemed by the court to constitute Rosario material was made at a time when that information was no longer useful, is both unpreserved (People v Jackson, 78 N.Y.2d 900), and belied by the record. As defendant sought no remedy following the trial court's direction that the document in question be turned over, declined the opportunity to call or recall relevant and available witnesses, and made extensive use of the information contained in the document in question (as well as in numerous other documents turned over to the defense prior to trial) through cross-examination of the People's witnesses, he cannot reasonably claim substantial prejudice due to the delayed disclosure that would warrant reversal in the interest of justice (People v. Banch, 80 N.Y.2d 610, 617).
Defendant's claims of prosecutorial misconduct during summation are unpreserved (People v. Balls, 69 N.Y.2d 641). In any event, the comments now complained of constituted appropriate response to the defense summation which repeatedly argued that the police witnesses lied and deliberately arrested an innocent man to effect an unwritten "body quota" (see, People v. Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912).
Concur — Sullivan, J.P., Carro, Ellerin, Wallach and Nardelli, JJ.