Opinion
December 14, 1992
Appeal from the County Court, Suffolk County (Namm, J.).
Ordered that the judgment is affirmed.
The choice of an appropriate sanction for the failure to timely disclose Rosario material (see, People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) is committed to the sound discretion of the trial court (see, People v Vasquez, 143 A.D.2d 161). Where there has been delay in the disclosure of Rosario material, reversal is required if the defense is substantially prejudiced thereby (see, People v Ranghelle, 69 N.Y.2d 56; People v Martinez, 71 N.Y.2d 937). In the instant case, the court's sanction, that is, dismissal of those counts of the indictment alleging the commission of crimes in April 1988 and on May 12, 13, and 17, 1988, effectively eliminated any prejudice to the defendant.
Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt of the crimes of sodomy in the first degree beyond a reasonable doubt (see, People v Contes, 60 N.Y.2d 620). Moreover, in the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15).
Contrary to the defendant's contention, the prosecutor's summation comments did not deprive him of a fair trial. Essentially, the challenged remarks constituted a fair response to the defendant's closing argument (see, People v Saylor, 115 A.D.2d 671).
The defendant's claim that the court erred in holding that any Rosario material contained in the Child Protective Services file was privileged pursuant to CPLR 4508 was not preserved for appellate review (CPL 470.35; People v De Jesus, 69 N.Y.2d 855).
The sentence imposed was not excessive (see, People v Suitte, 90 A.D.2d 80). Mangano, P.J., Miller, O'Brien and Santucci, JJ., concur.