November 16, 1994
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Lawton, J.P., Fallon, Wesley, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court properly determined that the testimony of defendant from his first trial could be used to impeach him if he testified at his second trial. The contention that defendant's competency during the first trial was in dispute is without merit. Because there was no determination that defendant was not competent when he testified at his first trial, he is presumed to have been competent (see, People v. Gelikkaya, 197 A.D.2d 405, lv granted 82 N.Y.2d 924). Moreover, his testimony was not so incoherent or inconsistent that its use at the second trial was prohibited.
Defendant also contends that the court erred in denying his motion to dismiss the indictment on the ground that it was based on legally insufficient evidence before the Grand Jury. That contention is not reviewable on appeal because defendant's conviction is based on legally sufficient trial evidence (see, People v. Haqq, 159 A.D.2d 983, lv denied 76 N.Y.2d 736). The further contention that reversal is warranted because defendant was not present at side-bar voir dires of prospective jurors is without merit. The holdings in People v. Antommarchi ( 80 N.Y.2d 247, rearg denied 81 N.Y.2d 759) and People v. Sloan ( 79 N.Y.2d 386, 392) that a defendant must be present during that questioning are not to be applied retroactively (see, People v Sprowal, 84 N.Y.2d 113; People v. Mitchell, 80 N.Y.2d 519).
We reject defendant's contention that reversal is warranted based on the People's violation of People v. Rosario ( 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, 15 N.Y.2d 765). The record does not show that the People possessed, or that there even existed, transcripts of trial testimony by defendant's accomplices, tape-recordings of witnesses' statements taken by the police, or statements to the police from defendant's accomplices that were not provided to defense counsel. The record establishes, however, that the 18-year-old notes of the People's firearms examiner, who testified at defendant's second trial, had been destroyed by the State Police as part of their periodic expungement of records of completed cases. Given the length of time between defendant's conviction following the first trial and the perfection of the appeal from that conviction, we conclude that those notes were destroyed in good faith. Thus, the court's refusal to sanction the People by striking the firearms examiner's testimony was not an abuse of discretion (see, People v. Quiles, 198 A.D.2d 448, 449, lv denied 83 N.Y.2d 857 ; People v. Roberts, 178 A.D.2d 622, 623, lv denied 79 N.Y.2d 952; see also, People v. Martinez, 71 N.Y.2d 937, 939-940; People v. Haupt, 71 N.Y.2d 929).
We have reviewed defendant's remaining contentions and conclude that they are without merit.