Summary
In Moolenaar, the reviewing court, relying on People v Woodside (204 AD2d 168 [1st Dept 1994], lv denied 84 NY2d 873), concluded the trial court made a sufficient inquiry to determine that the nondisclosed material did not contain witness statements not previously disclosed to the defense.
Summary of this case from People v. BortolisOpinion
September 20, 1994
Appeal from the Supreme Court, New York County (Daniel P. FitzGerald, J.).
Contrary to defendant's argument made for the first time on appeal, the trial court's instructions to the jury, which included a reference to defendant's "ultimate" testimony, did not violate defendant's right against self-incrimination. As defense counsel's opening statement pointedly advised the jury that defendant would testify, and indeed outlined defendant's proposed testimony, the trial court offered no information not already brought before the jury by defendant. Any possible prejudice to defendant emanating from his ultimate decision not to testify was obviated by the court's no adverse inference charge, which it is presumed the jury understood and followed (People v. Davis, 58 N.Y.2d 1102).
The court properly found, following inquiry at a CPL article 440 hearing, that a questioned computer generated police form did not constitute Rosario material, as it contained no actual pretrial statements of witnesses but only a digest of certain portions of preexisting recorded witness statements that had been turned over to the defense at trial (see, People v. Woodside, 204 A.D.2d 168 [May 17, 1994]).
The court also properly denied defendant's additional CPL 440.10 motion regarding a jury note issue, on the ground that defendant did not raise this issue in his previous CPL 440.10 motion, although in a position adequately to do so (CPL 440.10 [c]). In any event, the record indicates that the intent of the jury note in question was clear and properly interpreted by the court, and that the requirement that counsel be provided with the opportunity for meaningful input was satisfied (People v O'Rama, 78 N.Y.2d 270, 278). In this connection, we note that the court did not abuse its discretion in denying defense counsel's motion for recusal, as the court's knowledge of the matters at issue arose out of the performance of its adjudicatory function, and thus did not present a legal ground for disqualification (People v. Moreno, 70 N.Y.2d 403, 405-406).
Concur — Murphy, P.J., Wallach, Kupferman and Asch, JJ.