Opinion
May 11, 1993
Appeal from the Supreme Court, New York County (Frederic S. Berman, J.).
Defendant's conviction arises out of his arrest in connection with the sale of drugs to an undercover police officer.
Defendant failed to object or take exception to the trial court's curative actions following the prosecutor's inadvertent elicitation of testimony regarding an alleged conversation between defendant and the undercover officer, and thus failed to preserve any issue of error for appellate review as a matter of law (People v Santiago, 52 N.Y.2d 865, 866). Were we to review in the interest of justice, we would find defendant's claim of error to be meritless.
The trial court properly found that the delay in delivery of Rosario material did not prejudice defendant in any way, as he had previously received documents constituting the duplicative equivalent of the material in question (see, People v Whitaker, 165 A.D.2d 775, 776), and appropriately exercised its discretion in denying defendant's motion for a mistrial based on the alleged Rosario violation (People v Ortiz, 54 N.Y.2d 288, 292). In any event, defendant's appellate argument is not, in reality, a Rosario violation claim at all. His argument now is prejudicial surprise as a result of the introduction in evidence of a photocopy of the buy money which contained a notation that did not appear on the copy furnished him before trial, and tended to buttress the People's case. The claim is unpreserved.
We have considered defendant's additional claims of error and find them to be without merit.
Concur — Sullivan, J.P., Ellerin, Wallach, Rubin and Nardelli, JJ.