Opinion
June 25, 1992
Appeal from the Supreme Court, Bronx County (Fred W. Eggert, J.).
Defendant contends that he was deprived of a fair trial by the prosecutor's failure in three instances to turn over Rosario material in a timely fashion (CPL 240.45). Except with respect to the homicide detective's notes, counsel did not seek any remedy from the court, and in each instance specifically refused the opportunity to recall any witness for further cross-examination. Thus, for the most part, the issue has not been preserved (People v. Cowan, 169 A.D.2d 670, lv denied 78 N.Y.2d 964). In any event, while counsel was justified in vigorously protesting the untimely production of this material, defendant failed to articulate, let alone demonstrate, the substantial prejudice required to warrant reversal on this ground (People v Ranghelle, 69 N.Y.2d 56). Nor does he do so even now on appeal.
Defendant's claim that he should have been given time to locate a key witness is not only questionably preserved, but, in view of the extensive testimony regarding the People's attempt to locate the witness, it is clear that there was no abuse of discretion (People v. Shepard, 162 A.D.2d 226, lv denied 76 N.Y.2d 944). Nor did defendant assert that he had information that would make the attempt to locate the witness more likely to be successful. Thus, there was no reason to suppose that any purpose would be served by delaying the proceedings in order to look further for the witness (People v. Moutinho, 146 A.D.2d 650, 651, lv denied 73 N.Y.2d 980).
Finally, there is no merit to defendant's claim that the indictment should have been dismissed due to two alleged errors in the Grand Jury proceedings.
Concur — Carro, J.P., Ellerin, Kupferman and Asch, JJ.