People v. Brothers

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered May 14, 1990, upon a verdict convicting defendant of the crime of rape in the first degree.

During the course of defendant’s trial, Sondra Daggett, a *744nurse, was called to testify on behalf of the People. She identified a "rape kit” which had been used during the physical examination of the complainant and then sealed. Upon opening the kit, defense counsel discovered a writing, prepared by Daggett, which contained notations of her observations of the complainant as well as the physical examination that the complainant underwent. A copy of the notes had not been previously provided to defendant pursuant to the requirements of CPL 240.45 (1) (a). Defendant contends that this Rosario violation warrants reversal. We disagree.

Upon discovering the existence of Rosario material, County Court adjourned the trial to permit defense counsel to review the material. Thereafter, County Court precluded Daggett from testifying as to her observations of the complainant at the hospital or her observations as to the physical examination performed on that day, thereby depriving the People of the opportunity to lay a foundation for expert testimony as to the results of scientific tests performed. Initially, we note that there is no record evidence that substantial prejudice resulted from the delay in disclosure and, absent that, there was no need for County Court to impose any sanction (see, People v Martinez, 71 NY2d 937; People v Ranghelle, 69 NY2d 56). However, even assuming prejudice, the drastic sanction imposed by County Court was more than sufficient. Finally, we find no error in the People’s rhetorical inquiry of a defense character witness that she did not know what defendant was doing on the date of the alleged rape.

Mikoll, J. P., Yesawich Jr., Mercure and Mahoney, JJ., concur. Ordered that the judgment is affirmed.