PEOPLE v. LEO (1998)

Judgment, Supreme Court, Bronx County (Alexander Hunter, J.), rendered September 7, 1995, convicting defendant, after a jury trial, of robbery in the first degree, attempted aggravated assault upon a police officer or peace officer, criminal possession of a weapon in the second degree (two counts) and reckless endangerment in the first degree, and sentencing him, as a second violent felony offender, to a term of 9 to 18 years, three terms of 71/212 to 15 years, 3 1/212 to 7 years, all sentences to run concurrently, respectively, unanimously affirmed.

 The court properly denied defendant's challenge for cause to a prospective juror, since the totality of the juror's responses established that she could render an impartial verdict based on the evidence (see, CPL 270.20 [1] [b];  People v. Burts, 237 A.D.2d 155, 655 N.Y.S.2d 11, lv. denied 90 N.Y.2d 856, 661 N.Y.S.2d 182, 683 N.E.2d 1056).

The court's inquiry of a juror and of corrections officers concerning defendant's allegations of juror misconduct demonstrate that the incident complained of was trivial and innocuous and that no juror misconduct had occurred (see, People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901;  People v. Moreno, 244 A.D.2d 280, 665 N.Y.S.2d 852;  People v. Gonzalez, 232 A.D.2d 204, 648 N.Y.S.2d 78, lv. denied 89 N.Y.2d 923, 654 N.Y.S.2d 725, 677 N.E.2d 297).   As a result, there was no need to call other witnesses on this issue.

 We find no Rosario violation with respect to Federal documents.   Defendant received all the Rosario material made available by the Federal agency, and this material was, in any event, all the Federal Rosario material known to exist.   Contrary to defendant's claim, the People were not in control of the Federal file, and there is no evidence of a joint investigation between the People and the Federal authorities (see, People v. Frazier, 233 A.D.2d 896, 897, 649 N.Y.S.2d 542;  People v. Ortiz, 209 A.D.2d 332, 619 N.Y.S.2d 12, lv. denied 86 N.Y.2d 739, 631 N.Y.S.2d 619, 655 N.E.2d 716;  see also, United States v. Paternina-Vergara, 749 F.2d 993, 998, cert. denied 469 U.S. 1217, 105 S.Ct. 1197, 84 L.Ed.2d 342).   Moreover, defendant failed to articulate a sufficient factual basis for his assertion that other Rosario material existed in that file.   Accordingly, the court was not required to conduct a review of that Federal file.

Defendant's claim of substantial prejudice stemming from the People's delays in disclosure of various Rosario documents is not supported by the record (see, People v. Ranghelle, 69 N.Y.2d 56, 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011;  People v. Iglesias, 184 A.D.2d 432, 587 N.Y.S.2d 163, lv. denied 80 N.Y.2d 930, 589 N.Y.S.2d 858, 603 N.E.2d 963).

 While the trial court's interested witness charge was unbalanced, any error was harmless in light of the permissive nature of the charge, the repeated attacks by the defense on the People's witnesses, and the overwhelming evidence of guilt (see, People v. Hicks, 226 A.D.2d 189, 641 N.Y.S.2d 10, lv. denied 88 N.Y.2d 966, 647 N.Y.S.2d 720, 670 N.E.2d 1352).

Defendant voluntarily waived his right to be present during the Friday morning of jury deliberations (see, People v. Spotford, 85 N.Y.2d 593, 597-98, 627 N.Y.S.2d 295, 650 N.E.2d 1296).   Under all the circumstances, we find that this waiver was not the product of a violation of defendant's right to free exercise of religion.

MEMORANDUM DECISION.