Opinion
December 23, 1991
Appeal from the County Court, Dutchess County (Hillery, J.).
Ordered that the judgment is affirmed.
While the defendant was being transported to the police station following his arrest, he was properly advised of his rights under Miranda v Arizona ( 384 U.S. 436). He voluntarily and intelligently waived those rights, and indicated his willingness to answer questions. However, there was no interrogation en route. Upon arrival at the police station and before the defendant made a tape-recorded statement, he signed a "Voluntary Statement Form" which paraphrased the Miranda warnings. The defendant contends that these warnings are defective and incomplete and hence his taped statement is inadmissible. We do not agree. The defendant does not question the correctness of the warnings given to him on the way to the police station, nor does he deny that he freely and voluntarily waived his rights. Therefore, even if the warnings set forth in the Voluntary Statement Form were in some way defective, his statement was nevertheless made after a valid waiver of his Miranda rights.
The defendant also contends that two separate Rosario violations require reversal. We do not agree with this contention. Notes made by the prosecutor during an interview with the victim were properly examined by the trial court in camera (People v Adger, 75 N.Y.2d 723; People v Poole, 48 N.Y.2d 144). Our own review of these notes confirms the finding of the trial court that they consist of catch words designed to jog the prosecutor's memory, and drafts of questions the prosecutor intended to ask the witness. They did not consist of "abbreviated notes capsulizing witnesses' responses to questions relating directly to material issues raised on defendant's trial" (People v Consolazio, 40 N.Y.2d 446, 453, cert denied 433 U.S. 914) and are thus outside the holding of People v Rosario ( 9 N.Y.2d 286, cert denied 368 U.S. 566).
A different facet of the Rosario situation is presented with respect to the notes taken by the assigned detectives during their initial interview with the victim. Pursuant to a procedure established within the Poughkeepsie Police Department, the detectives destroyed these notes after they had been transcribed into a formal report. Such a procedure is improper (see, People v Wallace, 76 N.Y.2d 953). The original notes constituted Rosario material, and pursuant to People v Martinez ( 71 N.Y.2d 937) and People v Wallace (supra), the defendant was entitled to an appropriate sanction if they were destroyed. However, in this case, the only sanction requested by the defendant was a mistrial and/or dismissal of the indictment. Merely granting a mistrial would be a futile gesture since the notes would not be available at any retrial (see, People v Rice, 75 N.Y.2d 929). Similarly, dismissal of the indictment is a drastic remedy and as a general matter should not be invoked in response to the prosecutor's wrongful failure to preserve evidence (see, People v Kelly, 62 N.Y.2d 516, 520). Since these were the only sanctions requested by the defendant, the trial court did not improvidently exercise its discretion in denying the defendant's request (see, People v Rice, supra).
While it was error to permit the victim to testify on direct examination as to what he had told his mother and the police regarding the details of the crime (see, People v Rice, supra; People v Deitsch, 237 N.Y. 300), the error was harmless. Here, the evidence of guilt was overwhelming and included two taped statements of the defendant admitting his participation in the crime. There was no significant probability that the erroneously admitted testimony contributed to the jury's verdict (see, People v Crimmins, 36 N.Y.2d 230).
We have considered the defendant's remaining contentions, including his claim that his sentence is excessive, and find them to be without merit (see, People v Suitte, 90 A.D.2d 80). Bracken, J.P., Sullivan, O'Brien and Ritter, JJ., concur.