PEOPLE v. MARTIN (1998)

Judgment, Supreme Court, New York County (Alfred Donati, J.), rendered July 6, 1995, convicting defendant, after a jury trial, of assault in the second degree, criminal possession of a weapon in the fourth degree and menacing in the second degree, and sentencing him to a prison term of 6 months concurrent with 5 months probation, to be served concurrently with two concurrent prison terms of 1 year, unanimously affirmed.

 Defendant's suppression motion was properly denied.   A fair reading of the record of the hearing, viewed as a whole, and the reasonable inferences that may be drawn therefrom, establish that probable cause existed to support defendant's arrest based on eyewitness observation of a pistol-whipping assault in the subway (see, People v. Wearing, 246 A.D.2d 404, 666 N.Y.S.2d 426).

 The court properly exercised its discretion in ruling that the People, in the event that any defense witness denied that defendant had possessed a gun during the assault incident, would be permitted to cross-examine and to offer rebuttal evidence regarding the recovery of a similar-looking gun possessed by defendant one month after the incident.   This evidence could have been introduced on the People's direct case in any event (People v. Barnes, 176 A.D.2d 640, 641, 575 N.Y.S.2d 292, lv. denied 79 N.Y.2d 943, 583 N.Y.S.2d 197, 592 N.E.2d 805).

 The court properly declined to grant a mistrial based on the People's belated disclosure of Rosario material, since there was no showing of bad faith and the defense was not prejudiced.   The Rosario violation resulted, at most, in some cross-examination of the complainant that was superfluous but not detrimental to the defense, and this did not warrant a drastic sanction of a mistrial.

 While it was error for the court not to have issued a missing witness charge, such error was harmless because “there was no significant probability that a jury, properly instructed, would have acquitted the defendant” (People v. Robertson, 205 A.D.2d 243, 247, 618 N.Y.S.2d 330, lv. denied 85 N.Y.2d 913, 627 N.Y.S.2d 336, 650 N.E.2d 1338).

We have reviewed defendant's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.