Opinion
KA 12-02110
03-20-2015
The PEOPLE of the State of New York, Respondent, v. Earnest HUGHES, Defendant–Appellant.
Opinion Motion for reargument of the appeal is granted to the extent that, upon reargument, the memorandum and order entered January 2, 2015 (124 A.D.3d 1380, 999 N.Y.S.2d 659 ) is amended by deleting the second paragraph of the memorandum and substituting the following paragraph:
Even assuming, arguendo, that the People committed a Brady violation by failing to produce the recording of the victim's 911 call prior to the suppression hearing, we conclude that the content of that call “was probative of the weight to be accorded to the witness[es'] identification, not to the suggestiveness of the showup procedure and, therefore, [the call] could not have impacted the decision to suppress the identification” (People v. Whitted, 117 A.D.3d 1179, 1182, 985 N.Y.S.2d 319, lv. denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 ). Defendant's contention that the People committed a Rosario violation by failing to preserve a police officer's notes is unpreserved for our review because defendant did not object to the destruction of the notes or seek a sanction (see People v. Rogelio, 79 N.Y.2d 843, 844, 580 N.Y.S.2d 185, 588 N.E.2d 83 ; People v. Sanzotta, 191 A.D.2d 1032, 1032–1033, 595 N.Y.S.2d 152 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
SCUDDER, P.J., SMITH, CARNI, LINDLEY, and SCONIERS, JJ., concur.