People v. Sierra

222 A.D.2d 216, 634 N.Y.S.2d 485, 1995 N.Y. App. Div. LEXIS 12581

Opinion

—Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered June 14, 1993, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years and 31/2 to 7 years, respectively, unanimously affirmed.

Upon his arrest, defendant’s codefendant was found with a police badge and portable radio. Both before and during the trial, defense counsel argued that the investigations regarding the badge may have generated undisclosed Rosario material, and requested that the court conduct an in camera review of those documents. However, defendant failed to establish a factual basis to support his claim, merely speculating that the witnesses might have been interviewed in this connection (People v Poole, 48 NY2d 144). The court was entitled to rely upon the representations of the prosecutor, who indicated that the complainant had only been interviewed by the officers in the case and that the Internal Affairs Division investigation essentially focused only on "where and how the particular police shield was lost or stolen”. Moreover, during trial, defense counsel was afforded an opportunity to ask one of the police witnesses, out of the presence of the jury, whether he had been interviewed by Internal Affairs, but counsel never took advantage of this opportunity, nor did he seek to question the other police officer who arrested defendant. Since defendant forfeited the opportunity to develop a factual basis for his Rosario claim, he may not claim on appeal that the court improperly denied him an in camera review of the alleged Rosario material (People v Farrell, 207 AD2d 560, lv denied 84 NY2d 935; People v Chaudhry, 186 AD2d 48, lv denied 80 NY2d 973). Concur — Sullivan, J. P., Ellerin, Wallach, Rubin and Mazzarelli, JJ.