Opinion
September 23, 1991
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the judgments are affirmed.
After a hearing conducted pursuant to this court's direction, the Supreme Court determined that a Request to Buy report dated December 31, 1985, which sought funds for the drug transactions on January 2 and 3, 1986, and another report dated January 16, 1986, which sought funds for the transaction on January 17, 1986, were created prior to trial, were temporarily lost or misplaced during trial, but have since become available. We now find that the statements in these reports either are the duplicative equivalent of statements contained in other disclosed reports or do not relate to the subject matter of any prosecution witness's testimony. Therefore, there was no Rosario violation warranting a new trial.
It is fundamental that the prosecution must provide to the defense "[a]ny written or recorded statement * * * made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony" (CPL 240.45 [a]; see also, People v. Jones, 70 N.Y.2d 547). A new trial is necessary whenever the "prosecution inadvertently neglect[s] to turn over statements in their possession or within their power to produce" (People v. Haupt, 71 N.Y.2d 929, 930). In the instant case, the report dated December 31, 1985, was not prepared by any prosecution witness and, consequently, does not constitute Rosario material which the prosecutor was under an obligation to disclose (see, People v Gardner, 162 A.D.2d 466).
In addition, although the report dated January 16, 1986, was prepared by a police officer who testified for the prosecution, most of the statements contained therein were duplicative of statements contained in reports disclosed to the defendants before trial (see, People v. Saunders, 174 A.D.2d 700; People v Newell, 173 A.D.2d 864; People v. Winthrop, 171 A.D.2d 829). Contrary to the defendants' position, the claim of duplicative equivalence has been preserved for appellate review.
Further, we acknowledge that the report's statement that the January 17th drug transaction would involve $48,000 was not duplicated in the disclosed reports and differed from the trial testimony that only $43,000 was involved. However, since the money has not exchanged during that transaction and was merely displayed to the defendants prior to their arrest, this discrepancy in no way affected the police officers' credibility or the defendants' guilt or innocence. Under these circumstances, the "commonsense limits attendant to the Rosario rule militate against [a reversal]" (People v. Young, 172 A.D.2d 790, 791; People Velez, 161 A.D.2d 823).
We have considered the defendants' remaining contentions, including those raised by the defendant Minnerly in his supplemental pro se brief, and find them to be without merit. Thompson, J.P., Kunzeman, Harwood and Miller, JJ., concur.