Opinion
December 27, 1990
Appeal from the Supreme Court, Bronx County (Frank Torres, J.).
Defendant's conviction arises out of a buy-and-bust operation. It is submitted that defendant has failed to prepare an adequate record upon which to review his Rosario violation claims. (People v. Marcano, 157 A.D.2d 533.) No application for a mistrial was made on the basis of a Rosario violation. (People v. Hentley, 155 A.D.2d 392, lv. denied 75 N.Y.2d 919.) When the officer first referred to a DD-5 in his testimony, defense counsel made no request for it at that time. Where a defense counsel's inattention results in failing to obtain a police report, this does not constitute a withholding of Rosario material. (People v. Rogelio, 160 A.D.2d 359.)
Defendant is not prejudiced by the loss on appeal of defendant's arrest photograph. This goes to identification which is properly left for the jury's resolution. (People v. Jamison, 155 A.D.2d 369.)
The totality of the circumstances indicate that defendant was afforded meaningful representation. (People v. Baldi, 54 N.Y.2d 137, 146.) Defense counsel presented a viable defense of misidentification, repeatedly attempted to impeach the officers' credibility by their failure to provide a more detailed description and highlighted the absence of any additional incriminating evidence such as additional drugs or prerecorded buy money.
We have reviewed defendant's remaining contentions and find them to be without merit.
Concur — Kupferman, J.P., Carro, Asch and Wallach, JJ.