Opinion
Argued February 8, 2001.
March 19, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered May 24, 1999, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Jennifer K. Danburg of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.
Before: SONDRA MILLER, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
During the People's case, the prosecutor indicated that he would call a witness he had previously declared would not be called. The prosecutor also stated that in addition to the Rosario material (see, People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) previously produced, an audiotape of the witness's conversation with police might exist, but that it would be in the archives due to the age of the case and take at least a week to produce. The trial court responded that it would not allow the witness to testify unless the defendant waived any Rosario objection. The defendant's counsel did so, noting that he believed the witness possessed exculpatory information, and that his decision was based upon trial strategy. At the conclusion of the evidence, but before summations, the prosecution produced the audiotape.
Contrary to the defendant's contention, his attorney effectively and explicitly waived any objection based upon a possible Rosario violation (see, People v. Brown, 90 N.Y.2d 872; People v. Booker, 158 A.D.2d 700). The defendant's contention that his waiver became ineffectual once the audiotape was found and, thus, that he should have been allowed to recall the witness was not preserved for appellate review (see, CPL 47 0.05[2]). In any event, the trial court's denial of the application to recall the witness was a provident exercise of its discretion (see, People v. Leon, 186 A.D.2d 587).
The defendant's remaining contentions are without merit.