Appellate Division of the Supreme Court of New York, First DepartmentOct 11, 1994
208 A.D.2d 395 (N.Y. App. Div. 1994)
208 A.D.2d 395617 N.Y.S.2d 160

October 11, 1994

Appeal from the Supreme Court, New York County (Richard Failla, J.).

The court properly limited the scope of the Wade hearing, since the subject witness, who was the superintendent of the building in which defendant's family had resided for several years (see, People v. Collins, 60 N.Y.2d 214), established a long familiarity with the defendant (People v. Gissendanner, 48 N.Y.2d 543, 552; People v. Tas, 51 N.Y.2d 915), a fact which is not seriously controverted by the defendant (compare, People v Rodriguez, 79 N.Y.2d 445). The Grand Jury testimony was competent evidence to establish this fact (People v. Vargas, 118 Misc.2d 477), and it established the prior familiarity overwhelmingly (compare, People v. Rodriguez, supra). Defendant failed to preserve the present claim that the court should have permitted counsel to examine the witness on this issue during trial, out of the presence of the jury (see, People v. Vargas, supra), which remedy, in any event, is not required.

The prosecutor erred in failing to seek an advance ruling to supplement the Molineux ruling, or failing to direct her witness to refrain from alluding to the challenged prior bad act of defendant's. However, considering that the trial court had indicated that it would have permitted the testimony, the curative effect of the court's final instructions, and the lack of any indication that the prosecutor had withheld this information at the time of the Ventimiglia hearing, we find no basis to conclude that the court abused its discretion in denying the motion for a mistrial. Defendant's Rosario claim in this regard is both unpreserved and without merit. The witness' statement to the prosecutor on the eve of trial was neither written nor recorded (see, People v. Steinberg, 170 A.D.2d 50, 76, affd 79 N.Y.2d 673) and a prosecutor is not required to record a witness' statements (People v. Littles, 192 A.D.2d 314, lv denied 81 N.Y.2d 1016).

Finally, while the prosecutor overstepped the court's directive in summation, we find the error to have been harmless.

Concur — Ellerin, J.P., Kupferman, Asch, Nardelli and Tom, JJ.