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People v. Bailey

73 N.Y.2d 812 Court N.Y. Decision date 1988-12-15 English

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p. 812
The People of the State of New York, Respondent, v Anthony Steven Bailey, Appellant.
Argued November 18, 1988;
decided December 15, 1988
p. 813
APPEARANCES OF COUNSEL
Richard N. Allman and Philip L. Weinstein for appellant.
Elizabeth Holtzman, District Attorney (Carol Teague Schwartzkopf Barbara D. Underwood and Nikki Kowalski of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At defendant’s trial, it was discovered that a prosecution witness — a privately employed security guard — had made a report to his employer regarding the incident for which defendant was being prosecuted. Defendant claims that the People’s failure to discover and preserve the statement constitutes a Rosario violation (see, CPL 240.45 [1] [a]; People v Rosario, 9 NY2d 286 ). The lower courts found, however, with sufficient support in the record, that the People did not know of the statement’s existence or contents, and that the document was never in the People’s possession or control. Under these circumstances, the statement produced by the witness solely for his private employer was not Rosario material (see, People v Reedy, 70 NY2d 826 , 827).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.

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