Opinion
October 15, 1998
Appeal from the Supreme Court, New York County (John Bradley, J.).
There was no due process violation arising from the court's in camera review of the confidential therapy records of one of the child victims or its refusal to retain copies of such records for appellate purposes. It is a defendant's obligation to prepare and compile a proper record for review on appeal ( People v. Olivo, 52 N.Y.2d 309, 320), and defendant was free to subpoena a sealed copy of the records for inclusion in the court file. In any event, we accord due deference to the court's determination that the relevancy of the records in question did not outweigh the need for confidentiality ( see, People v. Arredondo, 226 A.D.2d 322, lv denied 88 N.Y.2d 964). Moreover, since defendant was acquitted of the charges pertaining to the subject of the records, and since defendant has not shown any interdependence between those charges and the charges relating to the other victims, we find no prejudice arising from the absence of the records from the court file ( see, People v. Roper, 235 A.D.2d 326, lv denied 89 N.Y.2d 1100).
Defendant's showing of a mere possibility that the Office of the Corporation Counsel might have been in possession of interview notes that might have been of some relevance to the instant case does not present a valid Rosario claim ( see, People v. Pressley, 216 A.D.2d 202, lv denied 86 N.Y.2d 800). In any event, such notes could not be Rosario material because the Office of the Corporation Counsel was acting in a civil capacity ( see, People v. Roselle, 84 N.Y.2d 350, 355-359) and not as a law enforcement agency.
The court properly permitted the People to elicit prior consistent statements to rebut defendant's claims of recent fabrication ( People v. McDaniel, 81 N.Y.2d 10, 18). In each instance, we find that the consistent statement occurred prior to the existence of a particular alleged motive to falsify.
We have considered and rejected defendant's remaining arguments.
Concur — Milonas, J.P., Rosenberger, Ellerin and Rubin, JJ.