Opinion
August 19, 1991
Appeal from the County Court, Westchester County (West, J.).
Ordered that the judgment is affirmed.
The defendant maintains that the prosecutor's opening statement to the jury was legally deficient and, thus, the trial court erred in denying his motion to dismiss the indictment at the close of that statement. We disagree. The facts set forth by the prosecutor in his opening statement sufficiently apprised the jury of the prospective evidence to be offered to establish the crimes of which the defendant was convicted, namely, murder in the second degree and criminal possession of a weapon in the second degree (see, Matter of Timothy L., 71 N.Y.2d 835; People v Tzatzimakis, 150 A.D.2d 512; see generally, De Vito v Katsch, 157 A.D.2d 413, 419-420). Accordingly, the defendant's motion to dismiss the indictment was properly denied.
We further find that the trial court's "natural and probable consequences" charge on the issue of intent did not violate Sandstrom v Montana ( 442 U.S. 510). The court instructed the jury that it "may infer, that a person intends the natural, reasonable and probable consequences of his act" (People v Renzulli, 100 A.D.2d 945). In addition, the court instructed the jury that intent "exists when a person has a conscious objective to cause the act with which he is charged," and advised the jury that "the burden is on the People to prove the intent of the defendant, beyond a reasonable doubt". Thus, the charge, read as a whole, did not violate the principles set forth in Sandstrom v Montana ( 442 U.S. 510, supra; see also, People v Smith, 87 A.D.2d 640).
The defendant next claims that the trial court abused its discretion when it denied his request for the imposition of a sanction based on the failure of two detectives to preserve their notes, which allegedly constituted Rosario material. The claim is without merit. "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" (People v Williams, 165 A.D.2d 839, 840). Since the two detectives did not testify at trial, their notes were not Rosario material, and the defendant was not entitled to them (see, People v Gardner, 162 A.D.2d 466).
We have considered the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Eiber, J.P., Rosenblatt, Miller and Ritter, JJ., concur.