Opinion
May 4, 1993
Appeal from the Supreme Court, New York County (Clifford Scott, J.).
The evidence at trial was legally sufficient to prove that defendant was armed with a deadly weapon, notwithstanding that the weapon was never recovered (see, People v Johnson, 144 A.D.2d 494, 495). Nor was the verdict against the weight of the evidence. Indeed, the evidence of guilt was overwhelming.
The tape recording of the complainant's 911 call was properly admitted into evidence as an excited utterance (People v Seymour, 183 A.D.2d 35, lv denied 81 N.Y.2d 766; People v Wright, 157 A.D.2d 534, lv denied 75 N.Y.2d 971). The evidence at trial clearly demonstrated the circumstances under which the statement was made and revealed that, during the brief period between the encounter and the telephone call, the complainant was in flight, searching for a place in which she could call the police in safety, and that the call itself was made as she hid under a desk in a nearby office.
We reject defendant's argument that it was error to admit a spent bullet found at the scene. It cannot be trivialized as mere coincidence that a bullet was promptly recovered at the scene of an alleged shooting, and the bullet was, thus, "sufficiently connected" with defendant to be relevant to an issue in the case (People v Mirenda, 23 N.Y.2d 439, 453).
Defendant's argument that the prosecutor knowingly allowed the use of false testimony, i.e., the complainant's companion's testimony that a second bullet was recovered from the scene, is not preserved for review and is, in any case, without merit. The prosecutor not only did not attempt to use the testimony to her advantage but, in fact, disavowed it (cf., People v Novoa, 70 N.Y.2d 490, 498).
Defendant's Rosario claim concerns his right to receive unredacted copies of the complainant's diary, which had been handed over to the District Attorney, and letters which the complainant had written to the prosecutor. A witness' prior statements which are in the possession of the prosecution need not be handed over to the defense if they are completely unrelated to the subject matter of the witness' trial testimony (see, CPL 240.45 [a]; People v Goldman, 175 A.D.2d 723, 725, lv denied 78 N.Y.2d 1076; People v Barrios, 163 A.D.2d 579, lv denied 77 N.Y.2d 875). Here, the prosecutor contended that the portions of the documents which had been redacted had no relevance to the case, but nevertheless handed the complete documents over to the court. The court's final decision as to whether the defense was entitled to more information fails to appear on the record, as does any subsequent indication from defense counsel that he did not receive a decision or that he had received it and objected to it. Under these circumstances, it would be sheer speculation to suppose that counsel was deprived of any materials to which he was entitled, and defendant's claim is, therefore, not preserved for review.
Contrary to defendant's argument, we find that his objection to the court's charge was not preserved for review (People v Autry, 75 N.Y.2d 836, 839). Moreover, we decline to review it in the interest of justice. We have examined defendant's remaining contentions and conclude that they are without merit.
Concur — Sullivan, J.P., Milonas, Ellerin and Wallach, JJ.