PEOPLE v. ANJORIE (2002)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered March 30, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the trial court erred in precluding admission of his hospital records which purportedly contain statements indicating that he was assaulted by the police is unpreserved for appellate review (see CPL 470.50[2];  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   In any event, such hearsay statements were inadmissible since they were not relevant to diagnosis or treatment (see People v. Brown, 262 A.D.2d 328, 689 N.Y.S.2d 652;  cf.  People v. Pette, 251 A.D.2d 600, 601, 674 N.Y.S.2d 768).   Moreover, the hospital records were properly precluded in the absence of the defendant's testimony because their potential for misleading the jury outweighed any probative value they may have had (see People v. Ortiz, 259 A.D.2d 271, 272, 686 N.Y.S.2d 386).

 The defendant further contends that the trial court erred in failing to preclude the testimony of both a detective and the defendant's accomplice as a sanction for the loss of Rosario material (see 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) consisting of the detective's handwritten notes of two statements made by the accomplice.   This claim is also unpreserved for appellate review, and was, in fact, waived by the defense at trial.   In any event, inasmuch as the detective testified that he transcribed the contents of these notes by typing them verbatim into the two DD-5 reports which he prepared, the defendant was not prejudiced by the loss of the notes (see People v. Banch, 80 N.Y.2d 610, 593 N.Y.S.2d 491, 608 N.E.2d 1069;  People v. Jones, 266 A.D.2d 237, 697 N.Y.S.2d 670;  People v. Lawrence, 239 A.D.2d 607, 662 N.Y.S.2d 770).   Moreover, the trial court elected to give an adverse inference instruction to the jury for the People's alleged Rosario violation (see People v. Banch, supra;  People v. Page, 240 A.D.2d 765, 660 N.Y.S.2d 47;  People v. Walker, 235 A.D.2d 510, 652 N.Y.S.2d 1004).

The defendant's remaining contention in his supplemental pro se brief is unpreserved for appellate review.