People v. Polanco

Feb 25, 2003
Versions:302 A.D.2d 305
756 N.Y.S.2d 170
2003 N.Y. App. Div. LEXIS 1713

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.

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 NY2d 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.

*306Defendant’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, wé would find that defendant has not made the showing of prejudice required by CPL 240.75 (see People v Fuller, 286 AD2d 650, lv denied 97 NY2d 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 US 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, we would find that the record establishes that the witness was unavailable for constitutional purposes (see Barber v Page, 390 US 719). Concur — Nardelli, J.P., Mazzarelli, Rosenberger, Ellerin and Gonzalez, JJ.