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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Kale MADDOX, Appellant

Decided: December 31, 1998

Present:  PINE, J.P., HAYES, CALLAHAN, BALIO and BOEHM, JJ. Edward J. Nowak by Kathleen McDonough, Rochester, for appellant. Howard R. Relin by Robert Mastrocola, Rochester, for respondent.

 Supreme Court did not err in denying defendant's motion for a Wade hearing.   The viewing of defendant by the undercover police officers 12 minutes after the drug transaction was merely confirmatory (see, People v. Wharton, 74 N.Y.2d 921, 922-923, 550 N.Y.S.2d 260, 549 N.E.2d 462;  People v. Carter, 212 A.D.2d 722, 622 N.Y.S.2d 804, lv. denied 86 N.Y.2d 733, 631 N.Y.S.2d 613, 655 N.E.2d 710).

 The court did not abuse its discretion in denying defendant's request to impose sanctions for the People's failure to preserve and make available to defendant the $10 bill used as “buy money” in the drug transaction.   A photocopy of the $10 bill was furnished to defendant and admitted into evidence at trial;  the bill itself had been recycled into the police department's “buy money” fund.   The record does not demonstrate that the People acted in bad faith in failing to preserve the bill or that defendant was prejudiced thereby (see, People v. Brister, 239 A.D.2d 513, 658 N.Y.S.2d 362, lv. denied 90 N.Y.2d 938, 664 N.Y.S.2d 756, 687 N.E.2d 653;  People v. Morrison, 235 A.D.2d 501, 653 N.Y.S.2d 357, lv. denied 89 N.Y.2d 1038, 659 N.Y.S.2d 869, 681 N.E.2d 1316;  People v. Porter, 179 A.D.2d 1018, 1018-1019, 580 N.Y.S.2d 117, lv. denied 79 N.Y.2d 1006, 584 N.Y.S.2d 460, 594 N.E.2d 954;  People v. Riviere, 173 A.D.2d 871, 571 N.Y.S.2d 75, lv. denied 79 N.Y.2d 831, 580 N.Y.S.2d 211, 588 N.E.2d 109), especially in the absence of some showing that the bill was exculpatory (see, People v. Porter, supra, at 1018-1019, 580 N.Y.S.2d 117).

 There is no merit to the contention of defendant that the court erred in permitting the undercover police officers to testify regarding a prior uncharged drug crime involving a drug sale made immediately before the drug sale involved here.   That testimony was properly admitted as evidence that defendant possessed cocaine at the time in question with the intent to sell (see, People v. Alvino, 71 N.Y.2d 233, 245-246, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Moody, 229 A.D.2d 936, 645 N.Y.S.2d 375, lv. denied 89 N.Y.2d 926, 654 N.Y.S.2d 729, 677 N.E.2d 301).   Further, the probative value of such evidence exceeded its potential for prejudice (see, People v. Alvino, supra, at 242, 525 N.Y.S.2d 7, 519 N.E.2d 808), and any prejudice to defendant was minimized by the court's limiting instruction regarding the prior sale (see, People v. Rodriguez, 224 A.D.2d 346, 638 N.Y.S.2d 620, lv. denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355;  People v. Dais, 222 A.D.2d 1045, 635 N.Y.S.2d 859, lv. denied 91 N.Y.2d 890, 669 N.Y.S.2d 5, 691 N.E.2d 1031).

The court did not abuse its discretion in denying the motion of defendant for a mistrial based upon the prosecutor's comments during summation and the objections made by the prosecutor to defense counsel's summation.   The conduct of the prosecutor was not so egregious or prejudicial as to deprive defendant of a fair trial (see generally, People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885;  see also, People v. Bastow, 217 A.D.2d 930, 932, 630 N.Y.S.2d 432, lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 953, 659 N.E.2d 776).

 The court did not err in denying defendant's request for a missing witness charge with respect to a police officer who had participated in the arrest of defendant.   Although defendant met his initial burden of demonstrating entitlement to the charge, the People established that the testimony of the officer would be only cumulative (see, People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583;  People v. Nesmith, 231 A.D.2d 941, 648 N.Y.S.2d 370, lv. denied 89 N.Y.2d 1039, 659 N.Y.S.2d 869, 681 N.E.2d 1316).

 Finally, defendant contends that the court abused its discretion in denying his request, made at the close of the People's case, that the indictment be dismissed as a sanction for the failure of the People to provide him with a piece of paper on which Police Officer Anderson made notes of the description of the seller in the drug buy. The officer made the notes while the description was being broadcast over the police radio by the undercover officers who had participated in the drug buy.   Officer Anderson did not testify at trial, nor were his notes provided to defendant.   His partner testified that he heard the broadcast and saw Officer Anderson write something down on a piece of paper;  however, he did not know where the piece of paper was.   The undercover officers testified that they had broadcast the description of defendant over the police radio.   It is not clear from the record whether the notes made by Officer Anderson described defendant.   If the notes contained a description of the suspect, they may be regarded as a written statement directly relating to the testimony of the officers at trial, and the notes therefore constitute Rosario material that “might have assisted counsel in cross examining the undercover officer” (People v. Smith, 182 A.D.2d 787, 787-788, 582 N.Y.S.2d 499, lv. denied 80 N.Y.2d 910;  cf., People v. Williams, 229 A.D.2d 603, 646 N.Y.S.2d 142, lv. denied 89 N.Y.2d 931, 654 N.Y.S.2d 734, 677 N.E.2d 306).   We therefore hold the case, reserve decision and remit the matter to Supreme Court for a determination regarding the contents of the notes taken by Officer Anderson.   Further, because we are unable to determine whether “the People fail[ed] completely to provide the material to the defendant even though they continue to possess it” or whether the “Rosario evidence has been lost or destroyed and cannot be produced” (People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134), we remit for a determination of that issue as well.

Case held, decision reserved and matter remitted to Supreme Court for further proceedings.