Opinion
February 22, 1996
Appeal from the Supreme Court, New York County (Richard Andrias, J.).
Defendant's guilt was proven beyond a reasonable doubt by overwhelming evidence. Although we reject defendant's contention that this was an entirely circumstantial case, even assuming the contrary, the court's instructions conveyed the correct standard ( see, People v. Ford, 66 N.Y.2d 428, 441). Defendant's remaining challenges to the instructions are unpreserved for review and we find no basis to review in the interest of justice.
Giving due deference to the hearing court's findings of fact ( see, People v. Prochilo, 41 N.Y.2d 759, 761), we find no basis to disturb the suppression ruling.
Defendant's Rosario claim is unpreserved since the trial court was disposed to provide broad leeway to counsel in addressing the delayed disclosure of the Rosario material and counsel never requested specific curative relief ( People v Rivera, 78 N.Y.2d 901; People v. Velez, 189 A.D.2d 572, lv denied 81 N.Y.2d 894). In any event, defendant has failed to demonstrate prejudice ( cf., People v. Goins, 73 N.Y.2d 989).
Since cross-examination of a witness manifested a strategy of suggesting a recent fabrication, the prosecutor properly rehabilitated the witness on redirect with the introduction of evidence of consistent testimony given prior to the onset of the alleged motive to falsify ( see, People v. Seit, 86 N.Y.2d 92, 95-96).
The evidence of defendant's gang associations and activities was, given his apparent lack of personal hostility toward the victims, highly probative of motive and intent ( see, People v Williams, 193 A.D.2d 408, lv denied 82 N.Y.2d 729; People v Zorilla, 211 A.D.2d 582), explained the gang leader's control over him ( People v. Boyd, 164 A.D.2d 800, 803, lv denied 77 N.Y.2d 904 ), and explained defendant's relationship to the various parties ( People v. Zorilla, supra), all of which outweighed the potential for undue prejudice. In any event, the court's limiting instructions minimized the potential for prejudice ( People v Steinberg, 170 A.D.2d 50, 74, affd 79 N.Y.2d 673), and we presume that those instructions were followed ( People v. Ebanks, 203 A.D.2d 199, 200, lv denied 83 N.Y.2d 966).
Certain of the challenges to summation are unpreserved, and none warrant reversal. We have examined defendant's remaining contentions and find them to be without merit.
Concur — Milonas, J.P., Wallach, Ross and Mazzarelli, JJ.