Opinion
February 10, 1999
Appeal from Order of Supreme Court, Erie County, Forma, J. — CPL art. 440.
Present — Green, J. P., Pine, Wisner, Pigott, Jr., and Callahan, JJ.
Order unanimously affirmed. Memorandum: We reject the contention of defendants that Supreme Court erred in denying their CPL article 440 motion. They contend that the People violated CPL 240.45 (1) (a) by failing to turn over Rosario material in the possession of the Federal Bureau of Investigation (FBI). We disagree. The alleged Rosario material was a teletype sent by an FBI agent to FBI headquarters in Washington, D.C., relating a statement of a prosecution witness concerning the murder of which defendants were subsequently convicted. The teletype was an internal FBI document that was never in the possession or control of the People or any State law enforcement agency, and thus there was no Rosario violation ( see, People v. Kronberg, 243 A.D.2d 132, 152, lv denied 92 N.Y.2d 880; People v. Frazier, 233 A.D.2d 896, 898).
The court properly determined that the People's failure to turn over Brady material, did not require reversal because there is no reasonable possibility that, had that material been disclosed, the result would have been different ( see, People v. Vilardi, 76 N.Y.2d 67, 77; People v. Gonzalez, 253 A.D.2d 674).
Finally, defendants contend that the court erred in denying their motion because the People failed to correct the perjurious testimony of one of their witnesses. Because that issue was previously determined on the merits on the direct appeal of each defendant from his or her judgment of conviction ( People v. Marvin, 216 A.D.2d 930, lv denied 86 N.Y.2d 844; People v. Spataro, 202 A.D.2d 1005, lv denied 84 N.Y.2d 833), the court could not grant defendants' motion based on that issue ( see, CPL 440.10 [a]).