Opinion
March 31, 1994
Appeal from the Supreme Court, New York County (Robert Haft, J.).
In the absence of the documents defendant claims contains undisclosed Rosario material, some of which are in defendant's possession as a result of his Freedom of Information Law (FOIL) request and others of which might be obtained if defendant were to exhaust his administrative remedies under FOIL (Hurley v Brown, 184 A.D.2d 370), defendant failed to raise an issue of fact warranting a hearing on his claim that the People failed to disclose Rosario material (CPL 440.30 [b]; see, People v Brown, 56 N.Y.2d 242, 246-247; People v. Friedgood, 58 N.Y.2d 467, 473). Since defendant moved to consolidate his appeal from the denial of his CPL 440.10 motion with his direct appeal from the judgment, and since defendant raises only the Rosario claim on this consolidated appeal without offering any challenge to his conviction based on the trial record, the judgment of conviction must be affirmed.
Concur — Carro, J.P., Rosenberger, Ross, Asch and Tom, JJ.