Opinion
March 29, 1993
Appeal from the Supreme Court, Kings County (Shea, J.).
Ordered that the order is affirmed.
The facts underlying this case are set forth at length in our decision and order affirming the defendant's judgments of conviction (see, People v. Rathbun, 141 A.D.2d 570, lv denied 72 N.Y.2d 1049). On that appeal, the defendant's challenge to the quantity and quality of the evidence against him was rejected.
The defendant now seeks to vacate his judgments of conviction, inter alia, on the ground that certain information was improperly withheld from the defense in violation of People v Rosario ( 9 N.Y.2d 286, cert denied 386 U.S. 866). Specifically, the defendant relies upon an affidavit of one Henry Winter, the prosecution's key witness, who attested nearly three years after the trial that he had once provided the Office of the Special Prosecutor with a "wish list" containing the benefits which he hoped to obtain in exchange for his testimony.
Based upon our review of the record, we find that the Supreme Court correctly determined that there was no factual basis for the assertion that the prosecution improperly denied the existence of Winter's statements (see, People v. Poole, 48 N.Y.2d 144, 149; People v. Rodriguez, 181 A.D.2d 841, 842; People v Minnerly, 162 A.D.2d 627, 628). Moreover, assuming, arguendo, that there was a Rosario violation, where, as here, a defendant's CPL 440.10 motion is made after exhausting his direct appeal, the trial court must first find prejudice to the defendant as a result of the Rosario violation before it may vacate a judgment of conviction (see, People v. Jackson, 78 N.Y.2d 638). No such prejudice was demonstrated herein. Thus, even if there was a Rosario violation, it was harmless in light of the other evidence presented at the trial (see, People v. Hughes, 181 A.D.2d 912).
The defendant also contends that he was deprived of a fair trial because the People failed to correct certain statements made by the prosecution's key witness regarding the specific terms of his grant of immunity from the District Attorney's Office of the Special Prosecutor. A defendant must be made aware of the existence of such agreements between the prosecution and a witness in order to comply with the principles of Brady v Maryland ( 373 U.S. 83) (see, People v. Novoa, 70 N.Y.2d 490, 496; People v. Cwikla, 46 N.Y.2d 434, 441). Since the defendant was made aware of those agreements before trial, and was afforded a meaningful opportunity to utilize that information during the trial, vacatur of his judgments of conviction is not warranted (see, People v. Cortijo, 70 N.Y.2d 868, 870; People v. Brown, 67 N.Y.2d 555, cert denied 479 U.S. 1093). Bracken, J.P., Balletta, Eiber and Santucci, JJ., concur.