Opinion
May 31, 1991
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the judgment is affirmed.
On November 1, 1980, a group of three to four armed men robbed the Skylark Bar and Restaurant in Queens. During the course of the robbery, the manager of the bar was killed, and a customer was wounded. Five days later, two Brooklyn police officers arrested the defendant in Kings County for criminal possession of a .25 caliber semi-automatic pistol, which was later established to be one of the weapons used in the Skylark robbery.
The Brooklyn police officers subsequently testified before the Kings County Grand Jury in connection with their arrest of the defendant for criminal possession of a weapon in that jurisdiction. Thereafter, when the defendant was tried in Queens County for the Skylark robbery, his attorney requested the prosecutor to produce the transcript of the police officers' Kings County Grand Jury testimony as Rosario material. The prosecutor objected to the request upon the grounds that the Grand Jury minutes were not in his possession, and that the minutes did not, in any event, constitute Rosario material. We agree that the subject minutes did not constitute Rosario material, and accordingly, affirm the judgment of conviction.
It is settled law that only the court in charge of a Grand Jury may release testimony from the secrecy requirements of CPL 190.25 (4) (see, Ivey v State of New York, 138 A.D.2d 962; Matter of People v Quigley, 59 A.D.2d 825). Thus, at bar, only the Kings County Supreme Court had jurisdiction over the subject minutes, and the Queens Assistant District Attorney assigned to prosecute the Skylark case could not have obtained the minutes absent a court order authorizing disclosure (see, CPL 190.25; Matter of Wolfe v Berman, 40 A.D.2d 869; Matter of Gold v Quinones, 37 A.D.2d 618). Since defense counsel similarly had the option of seeking a court order authorizing disclosure, the Kings County Grand Jury minutes were equally available to both parties. Accordingly, it was the defendant's responsibility to seek a court order releasing the minutes from the secrecy requirements of CPL 190.25 (4) if he believed them to be necessary for the preparation of his case (see, CPL 190.25; People v Tchilingurian, 163 A.D.2d 436; see also, People v Bradley, 119 A.D.2d 993; cf., People v Fields, 146 A.D.2d 505).
Although the defendant may have been entitled to a missing witness charge with regard to the retired detective who was initially assigned to investigate the Skylark robbery, the court's failure to so charge was harmless since there was overwhelming evidence of the defendant's guilt and no significant probability that a contrary verdict would have resulted (see, People v Crimmins, 36 N.Y.2d 230, 243; see also, People v Fields, 76 N.Y.2d 761).
We have examined the defendant's remaining contentions, and find that they are either unpreserved for appellate review or without merit. Mangano, P.J., Brown, Sullivan and Eiber, JJ., concur.