PEOPLE v. TAMAYO (1998)

Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered June 14, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fifth degree (two counts), and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years, unanimously affirmed.

 Defendant was not denied effective assistance of counsel by his trial counsel's failed strategy of deliberately deferring a Rosario issue until the end of trial in order to obtain a new trial, as discussed in our prior decision (see, People v. Tamayo, 222 A.D.2d 321, 322, 635 N.Y.S.2d 619, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432).   Defendant has not shown that his counsel's failure to obtain the missing Rosario material for impeachment purposes deprived him of a fair trial (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102).

 The trial court properly determined that a sworn juror was grossly disqualified.   The juror, inter alia, withheld, until after being sworn, material facts concerning a family member's involvement in crime (see, CPL 270.35;  People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901;  People v. Boston, 182 A.D.2d 494, 582 N.Y.S.2d 19, lv. denied 80 N.Y.2d 894, 587 N.Y.S.2d 925, 600 N.E.2d 652).   Once defendant elicited from the police officer the fact that the civilian buyer stated that he purchased the drugs for $70, and attempted to use that statement to prove that defendant was not the seller, defendant opened the door to the admission into evidence of that portion of the hearsay statement wherein the civilian buyer identified defendant as the seller (see, People v. King, 197 A.D.2d 440, 603 N.Y.S.2d 36, lv. denied 83 N.Y.2d 855, 612 N.Y.S.2d 386, 634 N.E.2d 987;  People v. Wortherly, 68 A.D.2d 158, 161-63, 416 N.Y.S.2d 594).

 The court properly denied defendant's request for a missing witness charge concerning the civilian drug buyer, since there was no evidence that the buyer was under the People's control or that the People would be expected to call him as a witness (see, People v. Gonzalez, 68 N.Y.2d 424, 427-431, 509 N.Y.S.2d 796, 502 N.E.2d 583;  People v. Parks, 237 A.D.2d 105, 654 N.Y.S.2d 365, lv. denied 90 N.Y.2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063;  People v. Jenkins, 226 A.D.2d 116, 640 N.Y.S.2d 68, lv. denied 88 N.Y.2d 937, 647 N.Y.S.2d 171, 670 N.E.2d 455).   The buyer's statement to the police incriminating defendant was not enough, standing alone, to create a relationship with the prosecution within the concept of “control”.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject each of them.

MEMORANDUM DECISION.