PEOPLE v. YOUNG (2009)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered November 1, 2007, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the trial court's failure to impose sanctions for the People's alleged failure to disclose alleged 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;  CPL 240.45) denied him a fair trial.   However, the record does not demonstrate a “factual basis that the [material] in question actually existed and also incorporated statements made by a witness concerning the subject matter of the incident” (People v. Pines, 298 A.D.2d 179, 180, 748 N.Y.S.2d 716;  see People v. Smith, 33 A.D.3d 462, 464, 823 N.Y.S.2d 123;  see also People v. Melendez, 259 A.D.2d 500, 684 N.Y.S.2d 881;  People v. Ray, 224 A.D.2d 722, 638 N.Y.S.2d 706).   Accordingly, the Supreme Court properly declined to draw an adverse inference based on the People's alleged failure to disclose alleged Rosario material (see People v. Smith, 33 A.D.3d at 464, 823 N.Y.S.2d 123;  see also People v. Melendez, 259 A.D.2d at 500, 684 N.Y.S.2d 881;  People v. Ray, 224 A.D.2d at 722, 638 N.Y.S.2d 706).

 The defendant's contention that this matter should be remitted for a Rosario hearing is without merit, since the defendant failed to articulate a factual basis for the assertion that the alleged Rosario material existed (see People v. Brown, 286 A.D.2d 340, 341, 728 N.Y.S.2d 685;  People v. Rodriguez, 270 A.D.2d 505, 705 N.Y.S.2d 387;  People v. Baptiste, 269 A.D.2d 536, 537, 703 N.Y.S.2d 739;  cf. People v. Dockery, 278 A.D.2d 427, 427-428, 717 N.Y.S.2d 657).