Opinion
January 24, 1991
Appeal from the Supreme Court, Bronx County (George Covington, J.).
On the morning of December 5, 1988, after speaking to a woman who described defendant's vehicle, police officers stopped a Jeep matching the description and asked defendant to get out with his hands up. As defendant alighted, Police Officer Panico observed a holster on defendant's waistband and removed a loaded revolver.
Officer Panico testified at trial that when he first saw defendant's Jeep, it was unoccupied. In testifying before the Grand Jury, Panico failed to state that the Jeep was unoccupied when he first saw it. Since Panico's Grand Jury statements merely omitted facts concerning which Panico had not been specifically questioned, the court correctly held that those statements did not constitute prior inconsistent statements which counsel could use at trial for impeachment purposes (People v Bornholdt, 33 N.Y.2d 75, 88, cert denied sub nom. Victory v New York, 416 U.S. 905).
The police stopped defendant on the basis of information supplied by a woman that defendant had been impersonating a police officer, pointing a gun at women, picking them up, and raping them. The police officers' conversation with the woman was properly admitted as necessary background information, and the court's extensive cautionary instructions eliminated any possibility that defendant would be prejudiced (People v Fay, 85 A.D.2d 512, appeal withdrawn 56 N.Y.2d 593).
Officer Panico testified that the woman gave him a piece of sandwich bag paper containing a license plate number and vehicle description. Since counsel never raised any Rosario argument regarding the destruction of this paper, defendant's claim that the court committed reversible error in failing to impose a sanction is unpreserved for appellate review (People v Baez, 155 A.D.2d 256). Furthermore, by failing to request any sanction at trial for the prosecutor's late delivery of an internal affairs police report, this issue is also unpreserved (People v Davis, 160 A.D.2d 664).
Finally, defendant's request for a missing witness charge regarding the prosecutor's failure to call a police officer who had remained in the back seat of the patrol car during defendant's arrest was properly refused since defendant failed to meet his initial burden of establishing the witness was knowledgeable about a material issue in the case (People v Erts, 73 N.Y.2d 872, 874).
Concur — Sullivan, J.P., Milonas, Rosenberger, Ross and Smith, JJ.