Opinion
June 13, 1991
Appeal from the County Court of Fulton County (Mazzone, J.).
On appeal from his conviction of first degree rape, defendant contends that County Court erroneously precluded him from cross-examining the complainant concerning whether she had made prior false claims of rape and that he was unduly prejudiced by the delay in the production of Rosario material consisting of the serologist's handwritten notes. We disagree.
As to defendant's first claim, we note that in People v Mandel ( 48 N.Y.2d 952, cert denied, appeal dismissed 446 U.S. 949) the Court of Appeals held that evidence of a victim's prior complaint of a sex crime does not come within the proscriptive scope of CPL 60.42; therefore, its "admissibility rests within the discretion of the trial court" (People v Harris, 132 A.D.2d 940, 941, lv denied 74 N.Y.2d 810). Inasmuch as defendant sought to impeach the complainant's credibility through the use of multiple hearsay (see, People v Hicks, 154 A.D.2d 713, 714), without an adequate factual basis for believing that the prior complaint was false (see, People v Lippert, 138 A.D.2d 770, 771), we see no abuse of County Court's discretion in denying defendant's motion to permit cross-examination of the complainant about a prior incident of attempted rape (see, supra).
With respect to defendant's remaining argument, the prosecution admits that the serologist's notes were not turned over to the defense before the prosecutor's opening statement as required (see, CPL 240.45 [a]; People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866). By failing to move for a mistrial or otherwise claim prejudice on this ground, however, defendant's argument is unpreserved for appellate review (see, People v Kilgore, 168 A.D.2d 830; People v Provenzano, 154 A.D.2d 486, lv denied 74 N.Y.2d 951). In any event, the Rosario violation in the instant case involves only delay in turning over material and does not require reversal in the absence of substantial prejudice (see, People v Martinez, 71 N.Y.2d 937, 940; People v Ranghelle, 69 N.Y.2d 56, 63). No such prejudice occurred here. The material was delivered to defense counsel in sufficient time for its use at trial (see, People v Kilgore, supra). Accordingly, defendant's conviction should be affirmed.
Mahoney, P.J., Weiss, Levine and Harvey, JJ., concur. Ordered that the judgment is affirmed.