Appeal from a judgment of the County Court of Rensselaer County (Harvey, J.), rendered October 21,1993, upon a verdict convict
Defendant was indicted by a Grand Jury for several offenses arising out of incidents which occurred during the early morning hours of September 18, 1992 in the City of Troy, Rensselaer County.
Defendant’s contention that he was effectively precluded from testifying on his own behalf by County Court’s Sandoval rulings is without merit. County Court properly exercised its discretion (see, People v Walker, 83 NY2d 455, 459; People v Lynch, 209 AD2d 827, lv denied 84 NY2d 1034) by invoking an appropriate Sandoval compromise (see, People v Mahan, 195 AD2d 881, 883).
Defendant further contends that reversal is warranted on each of the three attempted burglary convictions because the People failed to prove each element of each offense beyond a reasonable doubt. In effect, defendant argues that the verdict as to the attempted burglary counts was not supported by sufficient evidence or, in the alternative, was against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495; People v Duffy, 185 AD2d 528, 528-529, lv denied 80 NY2d 903; People v Wagner, 178 AD2d 679; see also, CPL 70.10 [2]; 70.20). "A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00; see, People v Warren, 66 NY2d 831, 832-833). "A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when: * * * 2. The building is a dwelling.” (Penal Law § 140.25.)
Defendant’s contention that Campbell’s and Lundstrom’s testimony with regard to 353 Third Street are simply not credible is without merit. "Testimony will be rejected as being incredible as a matter of law when it is 'incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ ” (People v Shedrick, 104 AD2d 263, 274, affd 66 NY2d 1015, quoting People v Stroman, 83 AD2d 370, 373; see, People v Wrigglesworth, 204 AD2d 758, 760). Credibility is generally an issue for the trier of fact "whose province it is to believe all or part of a witness’s testimony, even though it is at times confusing and inconsistent” (People v Bey, 179 AD2d 905, 907, lvs denied 79 NY2d 918,1046). While Campbell’s testimony tests the limits of acceptable inconsistency and confusion, a careful review of the record reveals that such testimony was not incredible as a matter of law. While Campbell’s testimony that the sun was up may have been inconsistent with the testimony that the incident occurred at about
As for the attempted burglary at 87 Ida Street (count two), the People elicited testimony from Daniel Frament,
With respect to the attempted burglary at 91 Ida Street (count three), the People only elicited testimony from McDonald and Lundstrom. As noted previously, McDonald, who lived at 91 Ida Street, heard noises which sounded like someone trying to open his front door. Though McDonald further testified that defendant did not have permission to be on his premises, he never actually saw defendant on his premises and only observed defendant on the front steps of 87 Ida Street. Lundstrom, however, testified that she told an undercover officer that she saw two guys going into that officer’s window.
After careful consideration of the record, we conclude that defendant’s argument that the People failed to establish that defendant entered or attempted to enter 91 Ida Street has merit. The only evidence placing defendant at 91 Ida Street was Lundstrom’s testimony that: "the undercover officer came out of no where and said, T saw those two going in my window,’ and he asked us, 'Did you guys see it?’ I said, 'Yes, we did.’ ” Viewing the evidence in the light most favorable to the prosecution, the People correctly argue that the jury was entitled to infer that the undercover officer was McDonald and the house was 91 Ida Street; thus, if believed, such testimony may have been legally sufficient to show that defendant engaged in conduct which tends to effect the commission of a burglary at 91 Ida Street.
However, a closer examination of Lundstrom’s testimony, when examined in conjunction with Campbell’s and McDonald’s testimony, suggests that Lundstrom was actually referring to 87 Ida Street rather than 91 Ida Street, and that the jury improperly weighed the evidence with regard to this count. McDonald testified that he did not see anyone on his premises and only saw defendant at 87 Ida Street. Thus, if the undercover officer in Lundstrom’s testimony was McDonald, he would have likely only asked about the two entering the window at 87 Ida Street. Also, Lundstrom might have thought
Finally, defendant’s assertion that he was denied a fair trial because of the People’s delayed production of Rosario material is unavailing (see, People v Banch, 80 NY2d 610, 615; see also, CPL 240.45). While the complete failure to disclose Rosario material results in an automatic right to a new trial, a mere delay in disclosure only requires reversal and a new trial if the delay substantially prejudices the defendant (see, People v Banch, supra; People v Martinez, 71 NY2d 937, 939; People v Clark, 194 AD2d 868, lv denied 82 NY2d 752). Here, the People did not provide prior statements of Campbell and Lundstrom until just prior to Campbell taking the witness stand. After an objection by defendant, County Court offered defendant a continuance prior to cross-examination. However, defendant did not make any further objections and never requested a continuance. While defendant argues that County Court’s offer of a continuance was inadequate to remedy the People’s Rosario violation, defendant has failed to show that he was prejudiced in any way. In fact, the record clearly shows that defendant was able to vigorously cross-examine both Campbell and Lundstrom. Reversal is therefore not warranted on this ground.
Cardona, P. J., Mercure, White and Peters, JJ., concur. Ordered that the judgment is modified, on the facts, by reversing so much thereof as convicted defendant of the crime of attempted burglary in the second degree with respect to the premises at 91 Ida Street; count three of the indictment is dismissed; and, as so modified, affirmed.
. The indictment charged both defendant and codefendant George Mann.
. Defendant’s indictment also included a resisting arrest charge which has not been addressed in defendant’s brief.
. Frament, the resident of 87 Ida Street, was not home on the night in question and only testified to the fact that defendant was not given permission to enter his home.
