People v. Richardson

203 A.D.2d 141, 610 N.Y.S.2d 509, 1994 N.Y. App. Div. LEXIS 4067

Opinion

—Judgment, Supreme Court, Bronx County (Robert L. Cohen, J.), rendered January 13, 1992, convicting defendant, after jury trial, of attempted murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 5 to 15 years on the attempted murder count, and 2 Vs to 7 years on each of the additional counts, unanimously affirmed.

The trial court’s ruling that the belatedly delivered complaint followup report is the duplicative equivalent of the timely delivered complaint report was erroneous. The two recorded statements were made at different times, to different police personnel, and emphasized different elements of the complaint. While the statements may be harmonious or consistent, they are not duplicative equivalents (People v Ranghelle, 69 NY2d 56, 63). However, contrary to defendant’s claim, the People’s delivery of the Rosario material in question after the relevant witness had testified and during presentation of defendant’s case, did not constitute a total failure to deliver. The record makes clear that although defendant could have opted to recall the relevant witness, he strategically declined to request such recall. Indeed, defense counsel indicated to the trial court that the material in question suggested only one particular area of questioning, regarding whether the complainant had looked through the peephole of the door prior to opening it, a point available for full exploration on cross-examination based upon a similar recorded statement of the same witness that was timely turned over to the defendant. Additionally, as conceded at trial level, defendant’s case did not stand or fall on the suggested issue. In these circumstances, defendant has failed to show that the delay in disclosure resulted in substantial prejudice to his case (see, People v Forrest, 163 AD2d 213, 214, affd 78 NY2d 886). Concur — Sullivan, J. P., Kupferman, Asch, Williams and Tom, JJ.