Opinion
March 30, 1995
Appeal from the Supreme Court, Bronx County (Frank Diaz, J.).
The tentative lineup identification of defendant by the murder victim's wife did not preclude a finding of independent source and would properly go to the weight accorded the in-court identification, rather than its admissibility (see, People v McCullers, 40 A.D.2d 796, affd 33 N.Y.2d 806). The witness' subsequent inadvertent stationhouse viewing of defendant, which resulted in a second tentative identification due to the witness' expressed state of physical and emotional distress, cannot negate the circumstances that the witness had extended opportunity to observe defendant before and during the incident, providing an independent source out of which the witness recognized defendant on the street 12 days after the incident, pointed him out to the police, and identified him again at the pretrial suppression hearing (see, People v. Johnson, 167 A.D.2d 298, lv denied 77 N.Y.2d 907).
To the extent defendant objected to the inadvertent references to defendant's presence near the scene of the crime immediately prior thereto by a witness whose in-court identification had been precluded, the trial court appropriately exercised its discretion in ruling that defendant was not so prejudiced that a mistrial was required (People v. Ortiz, 54 N.Y.2d 288, 292). Further, it is presumed that the jury understood and followed the court's instructions to disregard the witness' gestures or other references involving defendant as irrelevant to the issues at bar (People v. Davis, 58 N.Y.2d 1102, 1104).
Reversal is not warranted on the ground that the People failed to produce a police-generated arrest form, as the People adequately explained the loss of the document for trial purposes, there is no showing of prejudice to defendant from the loss of the essentially administerial form, and the trial court was not required to impose a sanction, let alone declare a mistrial (see, People v. Hernandez, 189 A.D.2d 634, 635, lv denied 81 N.Y.2d 887).
As the Medical Examiner's worksheet, a record generated by the Office of the Chief Medical Examiner, does not constitute Rosario material, the People were not required to provide it to the defense (People v. Nova, 206 A.D.2d 132; People v. Smith, 206 A.D.2d 102).
The trial court sustained defendant's objections and struck improper questions and/or responses in connection with the prosecutor's direct and cross-examination of witnesses. The court's prompt curative instructions, presumably understood and followed by the jury, obviated any undue prejudice to defendant (People v. Davis, supra).
Concur — Rubin, J.P., Ross, Nardelli, Williams and Tom, JJ.