Opinion
288
February 25, 2003.
Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered November 12, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.
Barbara Jane Hutter, for respondent.
Pat Bonanno, Peter H. Dailey, for defendant-appellant.
Before: Nardelli, J.P., Mazzarelli, Rosenberger, Ellerin, Gonzalez, JJ.
Defendant's request for an agency charge was properly denied. "Before an agency charge is warranted, the evidence must be indicative of a relationship with the buyer and not merely raise ambiguities about the defendant's connection to the seller" (see People v. Herring, 83 N.Y.2d 780, 783). Even when viewed most favorably to defendant, there was no reasonable view of the evidence that he was a mere extension of the buyer and not a participant in the sale.
Defendant's Rosario claim does not warrant reversal. The redacted information detailing other buys made on the same day of defendant's sale did not constitute Rosario material since it did not relate to the subject matter of a witness's testimony. In any event, even if we were to find a Rosario violation, we would find that defendant has not made the showing of prejudice required by CPL 240.75 (see People v. Fuller, 286 A.D.2d 650, lv denied 97 N.Y.2d 704).
The court properly admitted testimony given at a full and complete conditional examination (CPL art 660) by a witness who was unavailable for trial (CPL art 670). The alleged Rosario violation, discussed supra, had no impact on defendant's ability to cross-examine the witness (see Ohio v. Roberts, 448 U.S. 56, 70-73). To the extent that defendant is also arguing that there was an insufficient showing of necessity for the use of prior testimony, that argument is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, would find that the record establishes that the witness was unavailable for constitutional purposes (see Barber v. Page, 390 U.S. 719).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.