246 A.D.2d 406
N.Y. App. Div.
1998

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered March 8, 1995, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 9 to 18 years, unanimously affirmed.

The lost or destroyed bank surveillance videotape and photographs did not constitute Brady material because there was no showing that they were exculpatory and because they never came into possession of the prosecution or police (see, People v Alvarez, 70 NY2d 375). In any event, their non-production would not warrant the sanction of dismissal of the indictment, since there was no showing of bad faith or that the videotape or still photographs would have been beneficial to defendant. Furthermore, the photographs did not constitute Rosario material (People v Quinones, 228 AD2d 796, 798).

Defendant was not deprived of a fair trial by a fleeting reference to his prior incarceration during the People’s cross-examination of a defense witness in view of the court’s appropriate curative action.

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Andrias and Colabella, JJ.