Opinion
April 26, 1991
Appeal from the Supreme Court, Erie County, Rossetti, J.
Present — Callahan, J.P., Doerr, Denman, Pine and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Prior to his trial on charges arising out of three separate sales of cocaine to an undercover DEA agent, defendant sought a warrant declaring that the confidential informant who arranged the first two sales was a material witness. That request, not opposed by the People, was granted, but the informant was not located. On appeal, defendant argues that the failure of the People to produce the informant deprived him of a fair trial.
Because defendant did not demand production of the informant, defendant has failed to preserve this issue for review. Unlike People v. Brown ( 84 A.D.2d 910), where defendant made several informal requests that the People produce the informant, defendant's request for a material witness warrant cannot be construed as a demand for production. Even if it were so construed, the People met their burden of showing that they were not responsible for the disappearance of the informant; consequently, defendant was required to meet the heavy burden of establishing that the informant's testimony could exculpate him or raise a reasonable doubt about the reliability of the People's case (People v. Jenkins, 41 N.Y.2d 307, 309, rearg denied 42 N.Y.2d 825). In our view, defendant failed to demonstrate affirmatively that the informant's testimony would be exculpatory (see, People v. Miller, 124 A.D.2d 830, 831, lv denied 69 N.Y.2d 830, cert denied 481 U.S. 1071) or show the specific manner in which the informant's testimony would aid the defense (see, People v. Watson, 120 A.D.2d 866). Consequently, reversal is not required.
Defendant's statement to the undercover officer, although arguably taken in violation of his right to counsel, was admissible in rebuttal to impeach defendant's testimony that he had no drug supplier in Los Angeles (see, People v. Jones, 134 A.D.2d 915, lv denied 71 N.Y.2d 1028). By failing to object to admission of the testimony on the ground that a proper foundation had not been established, defendant failed to preserve that issue for review (CPL 470.05).
We reject defendant's argument that the verdict is against the weight of the evidence. Matters of credibility are best left to the trier of the facts (see, People v. Stroud, 143 A.D.2d 532, lv denied 73 N.Y.2d 790; People v. Christian, 139 A.D.2d 896, lv denied 71 N.Y.2d 1024) and, upon this record, we cannot conclude that the trial court, sitting as the trier of the facts, failed to give the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495).
We have examined the issues raised by defendant in his supplemental pro se brief and find them to be lacking in merit.