Opinion
Argued November 18, 1988
Decided December 15, 1988
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Richard A. Goldberg, J.
Richard N. Allman and Philip L. Weinstein for appellant.
Elizabeth Holtzman, District Attorney (Carol Teague Schwartzkopf, Barbara D. Underwood and Nikki Kowalski of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
At defendant's trial, it was discovered that a prosecution witness — a privately employed security guard — had made a report to his employer regarding the incident for which defendant was being prosecuted. Defendant claims that the People's failure to discover and preserve the statement constitutes a Rosario violation (see, CPL 240.45 [a]; People v Rosario, 9 N.Y.2d 286). The lower courts found, however, with sufficient support in the record, that the People did not know of the statement's existence or contents, and that the document was never in the People's possession or control. Under these circumstances, the statement produced by the witness solely for his private employer was not Rosario material (see, People v Reedy, 70 N.Y.2d 826, 827).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed in a memorandum.