Opinion
June 22, 1995
Appeal from the Supreme Court, New York County (Edwin Torres, J.).
Viewing the evidence at trial in the light most favorable to the People and giving them the benefit of every reasonable inference, defendant's guilt of each and every element of the crimes charged was proven by overwhelming evidence ( People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932). Although defendant elicited testimony from a medical expert that the deceased's injury could have resulted from falling onto a knife, an independent review of the facts indicates that the jury accorded appropriate weight to the credible evidence and properly found that defendant intentionally participated in the robbery scheme and intended to cause serious physical injury to the deceased ( People v. Bleakley, 69 N.Y.2d 490).
Giving due deference to the hearing court's credibility determinations ( People v. Fonte, 159 A.D.2d 346, lv denied 76 N.Y.2d 734), the hearing testimony established that the police were invited into defendant's home by a person of requisite authority ( People v. Cosme, 48 N.Y.2d 286, 290), and that defendant could not have reasonably believed he was under arrest when he agreed to accompany the officers to the precinct for an interview in connection with an ongoing investigation ( People v. Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851). The brief questioning of defendant following discovery of a knife in his pocket was permissible because it was intended to ascertain the nature of the situation during initial investigation of a crime, rather than to elicit evidence of a crime ( see, People v. Johnson, 59 N.Y.2d 1014, 1017 [Jasen, J., concurring], citing Miranda v Arizona, 384 U.S. 436, 481). In this connection, questioning following a frisk, in the absence of other factors equivalent to a formal arrest, does not constitute custodial interrogation ( People v. Morales, 65 N.Y.2d 997). Thereafter, questions posed to defendant which resulted in oral, written and videotaped statements were preceded by Miranda warnings. As defendant indicated that he understood and waived his rights, those statements were properly admitted. Further, statements made by defendant to his cohorts at the precinct were not the product of any police questioning or its equivalent, and thus also were properly admitted ( People v. Rivers, 56 N.Y.2d 476, 479).
Defendant did not request at trial that videotaped statements of individuals not prosecuted in this case be turned over as Brady and Rosario material, and thus did not preserve his current claims of a Rosario violation ( People v. Saunders, 210 A.D.2d 164, lv denied 84 N.Y.2d 1038) and a Brady violation ( People v. Anderson, 205 A.D.2d 399, lv denied 84 N.Y.2d 932). In any event, the two statements in question did not constitute Rosario material as neither individual in question testified ( see, People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866), and even counsel for the co-indictee, whose application did not preserve the issue on defendant's behalf ( see, People v Buckley, 75 N.Y.2d 843, 846) did not set forth any basis for belief that the two statements in question contained potentially exculpatory material ( see, People v. Andre W., 44 N.Y.2d 179, 184).
Defendant failed to preserve by appropriate objection his current claim that protective orders in connection with three of the People's witnesses were improperly granted (CPL 470.05; People v. Boone, 194 A.D.2d 407, lv denied 82 N.Y.2d 922). Further, at trial, defendant merely requested additional time to prepare for cross-examination of one of the witnesses covered by protective order. This request was granted, and as defendant did not argue at trial that he was unduly prejudiced by the delay of the Rosario material in connection with the witnesses covered by protective order, he failed to preserve his current claim that he was prejudiced because the delay hindered his opportunity to counter the testimony of those witnesses ( see, People v Saunders, 174 A.D.2d 700, 701). In this connection, contrary to defendant's argument on appeal, his counsel had ample opportunity to cross-examine the witnesses in question, raising issues regarding their relationship to defendant and the bases for their testimony.
Defendant's claim that he was denied his right to be present at all material stages of his trial because he was not present at court calendar calls between the end of the pretrial hearing and the commencement of trial, involving a co-indictee who was not tried with defendant, and when the protective orders were granted in connection with three prosecution witnesses, is meritless. Initially, defendant has failed to provide any record to indicate that the court calendar calls between the suppression hearing and the commencement of trial involved anything other than administrative and scheduling matters, and thus his claim that his absence during those calendar calls constituted a denial of his right to be present at all material stages of his trial is unreviewable ( see, People v. Jones, 211 A.D.2d 551). In this connection, we note that the available record indicates that defendant's counsel was present at all but one of the calendar calls in question and that in any event nothing more than administrative and scheduling matters was accomplished.
Concur — Sullivan, J.P., Rubin, Asch and Williams, JJ.