PEOPLE v. GARCIA

ORDERED that the appeal from the order dated April 23, 1999, is dismissed, as that order was superseded by the order dated June 3, 1999, made upon reargument; and it is further,

ORDERED that the order dated June 3, 1999, is affirmed insofar as appealed from.

On February 25, 1998, the police went to the defendant's apartment intending to execute a search warrant. When the defendant emerged from the apartment, he was arrested. On June 30, 1998, the defendant was indicted for drug possession and related offenses. On July 22, 1998, the court ordered open-file disclosure. On December 10, 1998, the People still had not provided full discovery, and defense counsel asked for a copy of the search warrant and all supporting documents. The court ordered production of these materials by January 25, 1999. The People did not supply a redacted copy of the search warrant affidavit until February 12, 1999, and never offered any explanation for their long delay. The court granted the defendant's motion to dismiss the indictment pursuant to CPL 30.30.

The arguments advanced in the People's brief on appeal were never presented to the Supreme Court, and accordingly, are not preserved for appellate review (see People v. Foy, 249 A.D.2d 217; People v. Babbs, 232 A.D.2d 496; People v. Marshall, 228 A.D.2d 15; People v. Bacchi, 186 A.D.2d 663, cert denied sub num Bacchi v. Senkowski, 519 U.S. 894; People v. Majette, 210 A.D.2d 145; People v. Mace, 206 A.D.2d 296) . Under the circumstances presented here, we decline to consider them in the exercise of our interest of justice jurisdiction, or remand the case for a hearing (see People v. Marshall, supra).

SANTUCCI, J.P., FLORIO, SMITH and SCHMIDT, JJ., concur.