Opinion
September 28, 1999
Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered May 29, 1997, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.
William McGuire, for Respondent.
Sangeeta Prasad, for Defendant-Appellant.
SULLIVAN, J.P., NARDELLI, WALLACH, ANDRIAS, FRIEDMAN, JJ.
The People's delay in producing Rosario material, consisting of the corrected copy of a property clerk's invoice, did not cause defendant substantial prejudice, entitling him to a mistrial following his attempt to impeach an arresting officer with the incorrect version of the form (see, People v. Martinez, 71 N.Y.2d 937, 940). The error in the incorrect version of the form was plainly clerical. By requesting a stipulation by the People rather than an instruction by the court, defendant failed to preserve his present claim that the court should have given a curative instruction on his lack of knowledge of the late disclosed document and we decline to review that claim in the interest of justice. Were we to review defendant's claim, we would find that defendant was not substantially prejudiced by the court's failure to include a curative instruction. Defendant's claim that his attorney was precluded from commenting on the purported inconsistency is not supported by the record.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.