Opinion
Argued September 9, 1999
October 28, 1999
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered July 31, 1998, convicting him of rape in the third degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50(5).
Contrary to the defendant's contention, the trial court did not err in failing to order a Gomberg hearing (see, People v. Gomberg, 38 N.Y.2d 307 ), since the defendant never demonstrated a "significant possibility" (People v. McDonald, 68 N.Y.2d 1, 9 ; see,People v. Lombardo, 61 N.Y.2d 97, 103 ) that a conflict of interest existed which "affected, or operated on, or [bore] a substantial relation to the conduct of [his] defense" (People v. Ortiz, 76 N.Y.2d 652, 657 ; see, People v. Carlson, 180 A.D.2d 743 ). Indeed, this case did not present a true Gomberg situation, but instead involved an application by the defendant to permit his wife to act as co-counsel on his behalf and to testify as a defense witness. Under the circumstances presented, the court properly denied the application (see, Code of Professional Responsibility DR 5-101[B] [ 22 NYCRR 1200.20(b)], 5-102[A] [ 22 NYCRR 1200.21(a)]) and instructed the defendant and his counsel to elect the capacity in which the defendant's wife should serve.
The court also properly rejected the defendant's post-verdict motion pursuant to CPL 330.30 to set aside his conviction based on purported violations of People v. Rosario ( 9 N.Y.2d 286, cert denied 368 U.S. 866) and Brady v. Maryland ( 373 U.S. 83 ) committed by the Kings County District Attorney's Office in failing to provide the defense with certain documents possessed by the Queens County District Attorney's Office in connection with a separate prosecution of the complainant's father for sexually molesting her. Most of the Queens County documents do not constitute Rosario material at all, since they are not statements of the complainant which relate to the subject matter of her testimony at the trial of the defendant (see, People v. Bailey, 200 A.D.2d 677 ; People v. Mobley, 190 A.D.2d 821 ). Moreover, the prosecution is only obligated to turn over Rosario materials which "actually are in or subject to the possession or control of the particular prosecution office" (People v. Kelly, 88 N.Y.2d 248, 252 ; see, People v. Flynn, 79 N.Y.2d 879, 882 ). The defendant has failed to establish that the Kings County prosecutors had actual or constructive possession of any of the items in question, and the mere cryptic reference in the trial court's notes to some degree of coordination between the two District Attorney's Offices is patently inadequate to warrant such a conclusion (see generally, People v. Berkowitz, 50 N.Y.2d 333 ). Similarly, the court was entitled to rely on the prosecutor's unequivocal representation that no additional notes of interviews with the complainant existed (see, People v. Poole, 48 N.Y.2d 144 ), and the defendant has come forward with no evidence to the contrary.
The defendant's claims that the indictment contained duplicitive charges and that it failed to afford him with fair notice of all of the charges against him are without merit (see, CPL 200.30;People v. Keindl, 68 N.Y.2d 410 ; People v. Cosby, 222 A.D.2d 690 ;People v. Anderson, 173 A.D.2d 478 ; People v. Di Noia, 105 A.D.2d 799 , cert denied sub nom. Di Noia v. New York, 471 U.S. 1022).
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620 ), we find that it was legally sufficient to establish the defendant' s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5]).
The defendant's remaining contentions are without merit.
THOMPSON, J.P., SULLIVAN, ALTMAN, and FEUERSTEIN, JJ., concur.