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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BARRY MILLER, Appellant.

Defendant's claims of Rosario violations are without merit. While "the author of the report[s] was himself a witness" and each "report is a statement by [the author]", Detective Torrellas' DD-5 reports at issue did not "reflect[] the activities about which he testified at trial" ( People v Banch, 80 NY2d 610, 620; People v Smith, 224 AD2d 347, lv denied 88 NY2d 942). By withdrawing his request for an adverse inference charge with respect to the handwritten complaint report of Officer Harrington, defendant expressly waived his current claim.

Detective Torrellas' hearing testimony clearly supported the court's finding that Kim Ross had sufficient familiarity with defendant such that her photographic identification of him was "merely confirmatory" and the People were not required to serve CPL 710.30 notice. The People had no obligation to produce Ross at the hearing and her subsequent identification of defendant at trial was proper ( People v Gissendanner, 48 NY2d 543, 552; People v Rodriguez, 79 NY2d 445, 450).

We have considered defendant's other contentions and find them to be without merit.

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PEOPLE v. MILLER
(Oct 15, 1996)