People v. Marcano

157 A.D.2d 533, 549 N.Y.S.2d 723, 1990 N.Y. App. Div. LEXIS 375

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1990
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Vincent Vitale, J.), rendered September 11, 1987, convicting defendant, after a bench trial, of two counts of attempted aggravated assault upon a police officer and one count of criminal possession of a weapon in the second degree, and sentencing him to indeterminate terms of imprisonment of from 3 to 9 years for the aggravated assault counts and from 2Vi to 7 years for the possession of a weapon count, unanimously affirmed.

At trial one of the arresting officers revealed that his memorandum book containing entries respecting this arrest had been lost. No claim of a Rosario violation was made. (People v Rosario, 9 NY2d 286.) We are unable to conclude on this record that any Rosario violation occurred. The memorandum book entries are most likely duplicative of the arrest report. Further, we have no way of determining that defendant had not in fact been served with copies of these materials.

Defendant’s claim that he is entitled to a new trial on the grounds of "newly discovered evidence” is misplaced. The court reopened the trial and heard the allegedly new evidence and determined that the testimony of the new witness was incredible.

The argument that prosecutorial misconduct in summation prejudiced the defendant is unpersuasive. This was a nonjury trial, and a court is presumed to have considered only competent evidence adduced at trial in reaching a verdict. (People v Moreno, 70 NY2d 403.) Concur Murphy, P. J., Carro, Kassal and Rosenberger, JJ.