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

The PEOPLE, etc., respondent, v. Domingo RODRIGUEZ, appellant.

Decided: March 27, 2000

FRED T. SANTUCCI, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN and ROBERT W. SCHMIDT, JJ. M. Sue Wycoff, New York, N.Y. (Lorca Morello of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Alyson J. Gill, and Joyce A. Smith of counsel), for respondent.

Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County (Rios, J.), rendered April 11, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court, dated February 24, 1999, which denied his motion pursuant to CPL 440.10 to vacate the judgment based upon juror misconduct and the ineffective assistance of counsel.

ORDERED that the judgment and the order are affirmed.

 The prosecution is required to turn over to the defense counsel all statements of a prosecution witness relating to the subject matter of the witness's testimony (see, CPL 240.45[1][a];  People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881).   Here, the representation by the prosecutor that no prior statements of the subject witnesses existed satisfied the prosecutor's burden, since the defendant could not articulate a factual basis for his claim that the prosecutor improperly denied the existence of such statements (see, People v. Poole, 48 N.Y.2d 144, 422 N.Y.S.2d 5, 397 N.E.2d 697;  People v. Perez, 209 A.D.2d 643, 619 N.Y.S.2d 641;  cf., People v. Minnerly, 162 A.D.2d 627, 556 N.Y.S.2d 949).   Therefore, there was no Rosario violation.

Under the totality of the circumstances, the defendant was not denied the effective assistance of counsel (see, People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Castaneda, 198 A.D.2d 292, 603 N.Y.S.2d 563;  People v. Adams, 148 A.D.2d 964, 539 N.Y.S.2d 200).

The defendant's remaining contentions are without merit.


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