Opinion
January 18, 1990
Appeal from the Supreme Court, Bronx County (Vincent Vitale, J.).
At trial one of the arresting officers revealed that his memorandum book containing entries respecting this arrest had been lost. No claim of a Rosario violation was made. (People v Rosario, 9 N.Y.2d 286.) We are unable to conclude on this record that any Rosario violation occurred. The memorandum book entries are most likely duplicative of the arrest report. Further, we have no way of determining that defendant had not in fact been served with copies of these materials.
Defendant's claim that he is entitled to a new trial on the grounds of "newly discovered evidence" is misplaced. The court reopened the trial and heard the allegedly new evidence and determined that the testimony of the new witness was incredible.
The argument that prosecutorial misconduct in summation prejudiced the defendant is unpersuasive. This was a nonjury trial, and a court is presumed to have considered only competent evidence adduced at trial in reaching a verdict. (People v Moreno, 70 N.Y.2d 403.)
Concur — Murphy, P.J., Carro, Kassal and Rosenberger, JJ.