Opinion
February 26, 1996
Appeal from the Supreme Court, Queens County (Orgera, J.).
Ordered that the judgment is affirmed.
The defendant's contention that he was denied Rosario material is without merit. There is no evidence in the record that establishes the existence of a so-called Nitron report (see, People v. Consolazio, 40 N.Y.2d 446, cert denied 433 U.S. 914; People v. Perez, 209 A.D.2d 643; People v. Alvaranga, 198 A.D.2d 286).
We find that the defendant was not denied his right, pursuant to CPL 190.50 (5), to testify before the Grand Jury. Assuming that the defendant indicated that he wished to testify before the Grand Jury and never changed his position, his remedy would have been to move to dismiss the indictment. By failing to make such a motion and, instead, agreeing to testify before the same Grand Jury that had already indicted him, the defendant waived any claim that he had been denied his statutory right to testify before the Grand Jury.
We also find that the defendant failed to sustain his burden of proving that he was denied the effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137; People v. DeFreitas, 213 A.D.2d 96; People v. Hamlin, 153 A.D.2d 644).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05) or without merit. Rosenblatt, J.P., Miller, Ritter and Friedmann, JJ., concur.