Opinion
April 1, 1993
Appeal from the Supreme Court, New York County, Murray Mogel, J., Alfred H. Kleiman, J.
On appeal in this wallet-snatch prosecution, defendant urges that his Rosario rights (People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) were violated by the People's failure to produce the arresting officer's complaint report (the so-called "UF-61"). Ordinarily, this document would contain, if furnished, the complainant's description of the perpetrator. Concededly, such evidence would only be pertinent to possible impeachment of the larceny count, and even then only tangentially, inasmuch as the victim's description was meager and she was unable to identify defendant at trial.
We find no reason to disturb the finding of the suppression hearing court (People v Prochilo, 41 N.Y.2d 759) that in this case no UF-61 was ever prepared and the allegedly "missing" document never came into existence. Of course, when Rosario material exists, the People have a duty to preserve it (People v Martinez, 71 N.Y.2d 937); however, the People have no affirmative duty to create such material (People v Steinberg, 170 A.D.2d 50, 76, affd 79 N.Y.2d 673). Because we are satisfied that the material was never generated, there was in fact no Rosario violation, and no sanction at trial was therefore required.
Concur — Sullivan, J.P., Rosenberger, Wallach and Asch, JJ.