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

The PEOPLE of the State of New York, Respondent, v. Earl PICKETT, Defendant-Appellant.

Decided: January 21, 1997

Before WALLACH, J.P., and NARDELLI, TOM, MAZZARELLI and ANDRIAS, JJ. Gregory H. Mansfield, for Respondent. Rosemary Herbert, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Alfred Kleiman, J.), rendered September 20, 1984, convicting defendant, after a nonjury trial, of robbery in the first degree and fraudulent accosting, and sentencing him, as a second violent felony offender, to concurrent prison terms of 7 1/2 to 15 years and 1 year, and order, same court and Justice, entered on or about October 25, 1993, which denied defendant's motion pursuant to CPL 440.10 to vacate the above judgment of conviction, unanimously affirmed.

 Defendant's motion to vacate judgment, alleging a failure to produce Rosario material, was properly denied because defendant did not meet his burden of proving by a preponderance of the evidence that the People failed to make the typed complaint available to him at trial (see, People v. Pujols, 194 A.D.2d 505, 599 N.Y.S.2d 568, lv. denied 82 N.Y.2d 724, 602 N.Y.S.2d 822, 622 N.E.2d 323).   We find no error in the court's conduct of the hearing, in light of all the circumstances, including defendant's limited offers of proof and his moving papers.

 The court appropriately punished a prosecution witness for contempt because of the witness's patently feigned lack of memory, whereupon the witness abandoned that position and thereupon completed his testimony inculpating defendant.   The court's actions did not cause any unlawful prejudice to defendant (compare, People v. Stanley, 133 A.D.2d 654, 655, 519 N.Y.S.2d 761, lv. denied, 70 N.Y.2d 938, 524 N.Y.S.2d 689, 519 N.E.2d 635, with People v. Ramos, 63 A.D.2d 1009, 406 N.Y.S.2d 123).   The court did nothing to prevent defendant from presenting evidence in his own behalf (cf., People v. Lee, 58 N.Y.2d 773, 775, 459 N.Y.S.2d 19, 445 N.E.2d 195), and did nothing to procure specific testimony favorable to the prosecution.   We have considered defendant's remaining arguments and find them to be without merit.


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