PEOPLE v. RAMIREZ (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered January 7, 1998, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court properly denied the defendant's request to reopen the suppression hearing when the People failed to deliver, until trial, the second page of the arresting officer's daily activity report, since it did not constitute Rosario material.   The officer's direct testimony concerned the details of the so-called “buy-and-bust” operation which culminated in the defendant's arrest, and not the information contained in his daily activity report, which included the time he began his next assignment.   Therefore, it did not “merit characterization as Rosario material” (People v. Boswell, 193 A.D.2d 690, 598 N.Y.S.2d 34;  see also, People v. Banch, 80 N.Y.2d 610, 593 N.Y.S.2d 491, 608 N.E.2d 1069;  People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011;  People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64;  People v. Barclift, 228 A.D.2d 194, 195, 642 N.Y.S.2d 902).

 The defendant's contention that certain remarks by the prosecutor during summation constitute reversible error is unpreserved for appellate review (see, CPL 470.05[2];  People v. Rosario, 195 A.D.2d 577, 601 N.Y.S.2d 836).   In any event, the comments made by the prosecutor during summation were either fair comment on the evidence, responsive to the defendant's summation (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Baker, 251 A.D.2d 592, 673 N.Y.S.2d 606;  People v. Harris, 209 A.D.2d 432, 619 N.Y.S.2d 589;  People v. Gibbs, 166 A.D.2d 454, 560 N.Y.S.2d 500;  People v. Blackman, 88 A.D.2d 620, 450 N.Y.S.2d 38), or not so prejudicial as to constitute reversible error in light of the overwhelming evidence of the defendant's guilt (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.