Opinion
April 6, 1992
Appeal from the Family Court, Kings County (Demarest, J.).
Ordered that the order of disposition is affirmed, without costs or disbursements.
The appellant's adjudication as a juvenile delinquent stems from his participation in the knife-point robbery of an 11-year-old boy. On appeal, he contends that he was deprived of a fair hearing because the presentment agency violated the Rosario rule by failing to turn over a tape recording of an emergency "911" telephone call made by the complainant's mother, who reported the robbery to the police. We disagree. Pursuant to People v Rosario ( 9 N.Y.2d 286, cert denied 368 U.S. 866), the prosecution is required to turn over any pretrial statement made by a prosecution witness relating to the subject matter of the witness's testimony. Contrary to the appellant's contention, however, the tape recorded statement made by the complainant's mother did not constitute Rosario material since she was not called as a witness at the fact-finding hearing (see, People v Williams, 165 A.D.2d 839, affd 78 N.Y.2d 1087; see also, People v Alejandro, 175 A.D.2d 873; People v Lee, 167 A.D.2d 354). We further note that the Rosario rule does not encompass "hearsay, rumor or gossip, attributable to a witness" (People v Williams, supra, at 841), and that any hearsay information concerning the robbery contained in the emergency 911 tape could not have been used to impeach the complainant at the hearing. Accordingly, the presentment agency's failure to turn over the subject tape to the appellant was not a violation of the Rosario rule (see, People v Williams, supra).
Further, upon our review of the record, we find that the Family Court did not improvidently exercise its discretion in sentencing the appellant to a period of probation (see, Matter of Katherine W., 62 N.Y.2d 947). Sullivan, J.P., Harwood, Balletta and Eiber, JJ., concur.