Opinion
Argued October 22, 1976
Decided November 18, 1976
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, WILLIAM G. HEFFRON, J.
Edward C. Cosgrove, District Attorney (William E. Balthasar of counsel), for appellant. Henrietta M. Wolfgang and Nathaniel A. Barrell for respondent.
MEMORANDUM. Order of the Appellate Division modified to the extent of reversing the vacatur of the judgment of conviction of defendant for grand larceny in the second degree and remitting for review of the facts, and such order is otherwise affirmed insofar as it reversed and vacated the judgment of conviction for a misdemeanor under section 145 of the Social Services Law.
Defendant's challenge to the jury panel was not preserved for review. Not only was the requirement of CPL 270.10 (subd 2) for a motion in writing ignored, but no adequate specification of the objections was offered in advance of the selection of the jury to give either the court or the People sufficient notice of the grounds to be relied upon (People v Consolazio, 40 N.Y.2d 446, 455).
With respect to the denial of the discovery motion there was no error. The documents sought were interoffice memoranda of the Department of Social Services. At most, as averred and argued by defendant, the desired material would show that defendant was receiving moneys for her activities on behalf of Project AWARE, the very foundation of the People's case. As the dissenters at the Appellate Division noted, and as the District Attorney argues, there is no dispute she received the moneys from Project AWARE. At issue was whether she was legally obligated to disburse such moneys to or for others and whether she did so. On this issue defendant offered little evidence except as to the disbursement of a relatively small portion of the moneys she received, without proof of an obligation to make such disbursement. On the other hand, the People's evidence, as commented in the majority opinion at the Appellate Division, established substantial use of Project AWARE moneys by defendant for her own purposes. Hence, the documents do not constitute exculpatory material necessary to the preparation of the defense. Since it was not shown that the documents were in the possession or control of the District Attorney, CPL 240.20 (subd 3) does not apply. Consequently, there was neither error of law nor possible abuse of discretion under that section.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order modified and the case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.