Opinion
May 20, 1996
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed.
The defendant contends that he is entitled to a new trial because of the People's delay in providing certain Rosario materials. While the complete failure to disclose Rosario material results in an automatic right to a new trial, a mere delay in disclosure requires reversal and a new trial only if there is a showing that the defense was "substantially prejudiced" by the delay ( People v. Banch, 80 N.Y.2d 610, 617; see also, People v. Ranghelle, 69 N.Y.2d 56, 63). The defendant has failed to make an adequate showing of such prejudice.
The bulk of the Rosario materials in question were disclosed either prior to opening statements or a week before the witness testified. Thus, the defense counsel received copies of the Rosario statements in time to conduct meaningful cross-examinations of the witnesses who made the statements.
With respect to a so-called "rap sheet" regarding one witness that was provided to defense counsel on the morning of the day that this witness was to take the stand, upon objection, the court granted a continuance and the defense counsel was able to vigorously cross-examine the witness. Furthermore, the People's delivery of the cooperation agreement between another witness and the District Attorney the day after the witness had testified, did not substantially prejudice the defendant. The record reveals that although the defendant could have opted to recall this witness, he strategically declined to request this relief and instead agreed to place the cooperation agreement into evidence. Accordingly, we find no merit to the defendant's contention that his ability to cross-examine the witness was impaired by the People's delay in providing the cooperation agreement ( see, People v. Cannon, 171 A.D.2d 752, 753).
Moreover, the People's delay in producing Detective Minovich's handwritten notes did not constitute a violation of the Rosario rule inasmuch as Detective Minovich did not testify at trial ( see, People v. Copes, 200 A.D.2d 681; People v. Alejandro, 175 A.D.2d 873).
The defendant further contends that the delayed disclosure of a letter written by one of the prosecution witnesses to his attorney constituted a violation of Brady v. Maryland ( 373 U.S. 83) and the court erred in failing to impose sanctions. The rule of Brady v Maryland (supra) does not require that disclosure be made at any particular point of the proceedings but only that it be made in time for the defense to use it effectively ( see, People v White, 178 A.D.2d 674, 675). Here the letter was disclosed on the morning of opening statements and the defendant did use it on cross-examination. There is no indication that an earlier disclosure would have had any effect on the outcome of the trial ( see, People v. Vilardi, 76 N.Y.2d 67).
The defendant contends that he was denied his right to a fair trial by the People's failure to produce the confidential informant at trial. We find that the defendant failed to demonstrate, either through his pretrial motion or upon the development of testimony at trial, that the confidential informant would have provided material and relevant testimony tending to exculpate the defendant ( see, People v. Goggins, 34 N.Y.2d 163, 170, cert denied 419 U.S. 1012; People v. Osorio, 144 A.D.2d 965; People v. McAvoy, 142 A.D.2d 605, 606; People v McKinney, 82 A.D.2d 895). At trial it was revealed that the informant's role was to supply the information that formed the basis of the search warrants. Thus, the People did not improvidently exercise their discretion in withholding disclosure of the confidential informant's identity since such disclosure would have placed the informant's life in jeopardy ( see, Roviaro v. United States, 353 U.S. 53; People v. Garcia, 51 A.D.2d 329, 331-332).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Thompson, J.P., Hart, Goldstein and McGinity, JJ., concur.