Opinion
570423/02.
Decided October 27, 2003.
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County, rendered March 19, 2002 after a nonjury trial (Robert Torres, J.) convicting him of attempted assault in the third degree (Penal Law §§ 110.00/120.00[1]) and harassment in the second degree (Penal Law § 240.26), and imposing sentence.
Judgment of conviction rendered March 19, 2002 (Robert Torres, J.) affirmed.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
The verdict was not against the weight of the evidence. Based upon the trial proof, including the videotape of the altercation, the factfinder reasonably could infer that when defendant kicked the complainant correction officer in the ribs, he did so with intent to cause physical injury ( Matter of Keene, J., 253 AD2d 679).
Defendant has not established a Rosario violation ( see, People v. Rosario, 9 NY2d 286, cert denied 368 US 866), since the unproduced Correction Department medical leave forms were not within the control of the District Attorney ( see, People v. Howard, 87 NY2d 940). In any event, even were a Rosario violation shown, there was no reasonable probability that nondisclosure of the documents materially contributed to the result of the trial (CPL 240.75; see, People v. Johnson, 286 AD2d 641, 642, lv denied 97 NY2d 683).
This constitutes the decision and order of the court.