People v. Daniels

254 A.D.2d 54, 681 N.Y.S.2d 483, 1998 N.Y. App. Div. LEXIS 10029

Opinion

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered May 17, 1995, convicting defendant, after a jury trial, of burglary in the third degree and criminal trespass in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 3¥2 to 7 years and 90 days, respectively, unanimously affirmed.

The record does not support defendant’s current claim that he was denied pretrial discovery materials. In this connection, we note that pedigree information is neither Rosario nor Brady material, and is not discoverable as a statement (People v Fortunato, 161 AD2d 455, lv denied 76 NY2d 892).

The court appropriately exercised its discretion in denying defendant’s request for an adverse inference charge regarding the destroyed 911 tape, since there was no evidence of lack of due diligence by the prosecutor, nor prejudice to defendant, who was provided with a Sprint report for purposes of cross-examination (People v Hyde, 172 AD2d 305, lv denied 78 NY2d 1077).

Defendant’s claim that he was denied a fair trial by various comments of the prosecutor during summation does not warrant reversal since the court sustained objections and gave curative instructions where appropriate.

The court’s proper inquiry established that defendant’s claim of an improper influence upon a juror was unfounded. Concur— Rosenberger, J. P., Ellerin, Wallach and Williams, JJ.