People v. Smith

—Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered June 29, 1993, convicting defendant, after jury trial, of two counts of sexual abuse in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 21 h to 5 years, and order of the same court and Justice, entered September 5, 1995, denying defendant’s motion pursuant to CPL 440.10 to vacate the judgment, unanimously affirmed. Defendant’s claim of a Rosario violation is without merit. The report in question did not constitute Rosario material because it did not contain a recorded statement "made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness’s testimony” (CPL 240.45 [1] [a]). Further, the notation on the report made by the detective who testified at trial, that the investigation was "active”, does not render the report Rosario material, as such notation did not reflect activities about which the detective testified (cf., People v Banch 80 NY2d 610, 620), nor did it otherwise relate to the subject matter of the detective’s direct testimony (People v Goldman, 175 AD2d 723, 725, lv denied 78 NY2d 1076). Nor does the report in question constitute Brady material (see, People v Howard 127 AD2d 109, 113, lv denied 70 NY2d 648). Concur — Sullivan, J. P., Milonas, Rosenberger, Kupferman and Nardelli, JJ.