Opinion
December 14, 1987
Appeal from the Supreme Court, Kings County (Goldberg, J.).
Ordered that the judgment is affirmed.
It was alleged that the defendant entered the premises of a milk company and attempted to drive away in a truck that was parked therein. He was apprehended by private security guards and milk company employees. The People called the security guards and an employee as witnesses at the trial. During cross-examination of two of the witnesses it was revealed that they had made written reports of the incident for their private employers. By the time of trial, however, the reports had been destroyed. The defendant claims that the prosecution's failure to discover the existence of the reports and to preserve them for his use constitutes a Rosario violation (see, People v Rosario, 9 N.Y.2d 286, 289, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866; CPL 240.45 [a]) We disagree.
CPL 240.45 (1) (a) requires that the prosecution deliver to a defendant any statements made at the direction of law enforcement officials or which are in the possession and control of the prosecutor (cf., CPL 240.20; People v Ranghelle, 69 N.Y.2d 56, 64; People v Perez, 65 N.Y.2d 154, 159). In this case, however, the prosecutor did not even know about the statements until his witnesses' cross-examination. Obviously they were not made at his direction nor were they under his control or in his possession.
The defendant's challenge to the imposition of a mandatory surcharge upon his conviction (see, Penal Law § 60.35) is premature at this juncture (see, People v Bethea, 133 A.D.2d 836; People v Williams, 131 A.D.2d 525; People v West, 124 Misc.2d 622). Brown, J.P., Weinstein, Kooper and Sullivan, JJ., concur.