Opinion
November 1, 1994
Appeal from the Supreme Court, New York County, Charles Tejada, J.
Previously, we held this matter in abeyance and remanded for a de novo hearing on defendant's motion to suppress evidence (People v. Cameron, 194 A.D.2d 438). We find that the suppression court properly denied defendant's motion. The taint from the officers' illegal pursuit of defendant was attenuated by defendant's calculated, aggressive and wholly distinct act of attempting to shoot Officer Carnegie (People v. Townes, 41 N.Y.2d 97). Upon the record before us, we conclude the court properly credited the testimony of the police witnesses, and we further note that the suppression court had the "peculiar advantages of having seen and heard the witnesses" (People v. Prochilo, 41 N.Y.2d 759, 761).
Defendant's claim that he was denied Rosario material at trial (see, People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) was not raised at the trial, nor at the time this appeal was initially argued. It was raised for the first time at the hearing ordered by this Court, where it exceeded the scope of the remand. Accordingly, it was not preserved for appellate review on appeal from the final judgment, and we decline to review it, upon this original appeal, in the interest of justice (see, People v Gayle, 168 A.D.2d 201, 202-203, lv denied 78 N.Y.2d 955). Defendant can move, pursuant to CPL 440.10, if so advised, to bring any Rosario issue properly before the courts.
Concur — Sullivan, J.P., Ellerin, Kupferman, Ross and Asch, JJ.