Opinion
October 3, 1991
Appeal from the Supreme Court, Bronx County, David Stadtmauer, J., Joseph Mazur, J.
On October 1, 1987, in the lobby of a housing project in Bronx County, the complainant was robbed by three individuals, including the defendant, who shot the complainant in the shoulder. The complainant identified defendant, known to him socially by the appellation "Ollie North", from a photo array. Subsequently, the complainant accompanied police officers on a search, and, without prompting, recognized defendant on the public sidewalk, whereupon defendant was placed under arrest.
Initially, we reject the argument that the photographic array was suggestive (People v. Johnson, 159 A.D.2d 377, lv denied 76 N.Y.2d 790), noting that, in any event, the defendant was a previous acquaintance of the complainant, and that any suggestion in the array could not have tainted the identification.
There is no merit to defendant's argument that trial counsel was ineffective for failing to fully cross-examine prosecution witnesses, to subpoena crucial witnesses, and to move to reopen the suppression hearing upon receipt of Rosario (People v Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866) material on the eve of trial (People v. Mackey, 155 A.D.2d 297). In spite of defendant's failure to raise these issues at trial (CPL 470.05), we note that neither the synopsis sheet nor the Grand Jury testimony of Officer Brideson constituted Rosario or Brady (Brady v. Maryland, 373 U.S. 83) material, and in any case, defendant has not demonstrated that he suffered prejudice by the People's failure to disclose this material until the eve of trial (People v. Martinez, 71 N.Y.2d 937, 940).
Finally, we decline to review defendant's pro se argument that the indictment should be dismissed pursuant to CPL 210.30, since defendant relies on records which have not been included as part of the record on appeal (Block v. Nelson, 71 A.D.2d 509, 511). In any case, appellate review is not warranted since legally sufficient evidence was adduced at trial (CPL 210.30; People v. Pelchat, 62 N.Y.2d 97). We have considered the remaining arguments and find them to be without merit.
Concur — Milonas, J.P., Ellerin, Asch and Rubin, JJ.