People v. Callendar

90 N.Y.2d 831 (1997) 683 N.E.2d 332 660 N.Y.S.2d 710

The People of the State of New York, Appellant,
v.
Donald Callendar, Respondent.

Court of Appeals of the State of New York.

Argued May 6, 1997 Decided June 10, 1997.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Seth M. Lieberman, Roseann B. MacKechnie and Leonard Joblove of counsel), for appellant.

Andrea G. Hirsch, New York City, for respondent.

Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.

MEMORANDUM.

The order of the Appellate Division should be affirmed.

The People's sole argument is that a prejudice standard, rather than the per se error rule, should apply to Rosario violations raised by CPL 440.10 motions made before defendant's direct appeal is concluded (see also, People v Machado, 90 N.Y.2d 187 [decided today]). Having failed to raise this specific issue before the hearing court, the People have not preserved their claim for our review.

Order affirmed in a memorandum.