Opinion
April 19, 1994
Appeal from the Supreme Court, Bronx County (Robert L. Cohen, J.).
The trial court's ruling that the belatedly delivered complaint followup report is the duplicative equivalent of the timely delivered complaint report was erroneous. The two recorded statements were made at different times, to different police personnel, and emphasized different elements of the complaint. While the statements may be harmonious or consistent, they are not duplicative equivalents (People v Ranghelle, 69 N.Y.2d 56, 63). However, contrary to defendant's claim, the People's delivery of the Rosario material in question after the relevant witness had testified and during presentation of defendant's case, did not constitute a total failure to deliver. The record makes clear that although defendant could have opted to recall the relevant witness, he strategically declined to request such recall. Indeed, defense counsel indicated to the trial court that the material in question suggested only one particular area of questioning, regarding whether the complainant had looked through the peephole of the door prior to opening it, a point available for full exploration on cross-examination based upon a similar recorded statement of the same witness that was timely turned over to the defendant. Additionally, as conceded at trial level, defendant's case did not stand or fall on the suggested issue. In these circumstances, defendant has failed to show that the delay in disclosure resulted in substantial prejudice to his case (see, People v Forrest, 163 A.D.2d 213, 214, affd 78 N.Y.2d 886).
Concur — Sullivan, J.P., Kupferman, Asch, Williams and Tom, JJ.