Opinion
December 13, 1990
Appeal from the Supreme Court, New York County (Jay Gold, J.).
Defendant was allegedly observed by a police officer breaking into a commercial van and removing property from inside. Defendant testified that he had been shooting up heroin in a nearby dumpster, where he found the stolen property, and denied breaking into or entering the van. The court did not err by denying defendant's application to submit trespass to the jury as a lesser included offense of burglary in the third degree, since although it is impossible to commit burglary without at the same time committing trespass (People v. Henderson, 41 N.Y.2d 233), no reasonable view of the evidence would support a conclusion that defendant committed the lesser offense but not the greater (People v. Glover, 57 N.Y.2d 61). As to defendant's various Rosario claims, we observe that police memo book entries which are unrelated to the present case are not discoverable (see, CPL 240.45; People v. Rosario, 9 N.Y.2d 286, cert. denied 368 U.S. 866), nor are witnesses' addresses and phone numbers (see, People v. Poole, 48 N.Y.2d 144), or a prosecutor's notes with respect to his strategy at arraignment or bail, which are attorney work product.
The court permitted readback of the arresting officer's direct testimony, but not cross-examination, in response to the jury's request for testimony concerning "from when he entered his own car up until he made the arrest of Jenkins." While a request for readback is presumed to include cross-examination which impeaches the testimony which is read back (see, People v. Sepulveda, 44 A.D.2d 846), the subject cross-examination was not encompassed by the jury note since cross-examination focused on events which occurred prior to the officer's entry of his own car.
At most, a juror's alleged statement manifested everyday perceptions and experience (People v. Martin, 149 A.D.2d 534, lv denied 74 N.Y.2d 814) and does not suggest that any impropriety occurred during jury deliberations.
Finally, we have examined defendant's contentions concerning the prosecutor's comments on summation and the juror's alleged statement as to discussion during deliberations and find no basis on which to reverse.
Concur — Carro, J.P., Asch, Kassal and Smith, JJ.