People v. Vacante

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Aiello, J.), dated June 8, 1993, which denied his motion, pursuant to CPL 440.10, to vacate a judgment of conviction rendered November 8, 1989, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the order is affirmed.

At a pretrial hearing, a witness made reference to the audiotapes forming the basis of the defendant’s present Rosario claim and the defense counsel made no request for them at that time or at the trial. Inasmuch as the defendant had knowledge of the existence of the subject Rosario material and failed to object at a time when any Rosario violation could have been redressed, the issue has not been preserved for appellate review (see, People v Jackson, 78 NY2d 900, 901; People v Rivera, 78 NY2d 901, 903; People v Rogelio, 79 NY2d 843, 845; People v Toro, 168 AD2d 400, cf., People v Smith, 190 AD2d 700), and we decline to reach it in the exercise of our interest of justice jurisdiction. Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.