PEOPLE v. JACOB

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

The PEOPLE, etc., Respondent, v. Douglas JACOB, Appellant.

Decided: October 29, 2001

LAWRENCE J. BRACKEN, P.J., LEO F. McGINITY, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ. William D. Wexler, North Babylon, N.Y. (Kevin G. Snover of counsel), for appellant. James M. Catterson, Jr., District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered January 5, 1999, convicting him of offering a false instrument for filing in the second degree (eight counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court properly denied the defendant's motion for a mistrial based upon the delay by the prosecution in providing 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).   The Rosario material in question consisted of a police officer's memobook entry indicating that a witness told the police that a named individual had made certain statements to her.   The memobook entry came to defense counsel's attention during the People's case, but after the conclusion of the questioning of the witness.

 Since the Rosario material was turned over during trial and defense counsel was afforded the opportunity to review the material and to recall the witness to the stand, it cannot be said that the prosecution delayed production until after the material was no longer of any value to the defense.   When, as here, disclosure occurs during trial before both sides have rested, the material has been disclosed when it is still “useful” to the defense (People v. Best, 186 A.D.2d 141, 142, 587 N.Y.S.2d 429;  see, People v. Polanco, 174 A.D.2d 468, 571 N.Y.S.2d 710).   Considering the relief afforded to the defendant and the overwhelming evidence of guilt, the effect of the untimely disclosure was de minimis (see, People v. Best, supra;  People v. Polanco, supra).

The defendant's remaining contentions are without merit.

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