Opinion
Argued June 7, 1972
Decided July 7, 1972
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, FRANCIS J. BLOUSTEIN, J.
Otto F. Fusco and Arthur F.X. Henriksen for appellant.
Burton B. Roberts, District Attorney ( Ronald D. Degen of counsel), for respondent.
During the trial defendant's retained counsel asked the District Attorney to make available to him, as an aid to cross-examination, a copy of the minutes of an earlier trial which the prosecutor had in the courtroom. This was refused and the Trial Judge declined to make a direction that the minutes be made available, on the ground no indigency had been shown and the minutes could have been otherwise obtained by defendant.
Ordinary professional courtesy would have suggested the minutes be made available for this purpose. But it was not an error of law for the court to refuse to make that direction. This issue is not governed by People v. Rosario ( 9 N.Y.2d 286) which required the disclosure by the People of statements by witnesses which were not otherwise available to defendant. This defendant was present at the prior trial, knew what the testimony was, and as far as the record shows could have purchased the minutes.
Even if defendant had been entitled to the minutes and the court's refusal to direct they be furnished be deemed error, proof of the defendant's guilt is so overwhelming that such an error, as the Appellate Division observed, would have been harmless.
The order should be affirmed.
Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur in Per Curiam opinion.
Order affirmed.