People v. Rodriguez , 632 N.Y.S.2d 112 ( 1995 )

—Order, Supreme Court, Bronx County (David Stadtmauer, J.), entered on or about April 14, 1994, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of said court and Justice, rendered July 9, 1991, convicting him, after a jury trial, of murder in the second degree and two counts of reckless endangerment in the first degree and sentencing him to terms of 25 years to life, 31/2 to 7 years and 31/2 to 7 years, respectively, unanimously affirmed.

In his CPL 440.10 motion, defendant alleged that the People’s failure to disclose an alleged autopsy audiotape created by the Office of the Chief Medical Examiner constituted a Rosario violation. In People v Washington (86 NY2d 189,193), the Court of Appeals considered and rejected an identical claim, holding that a Rosario "obligation simply does not arise where, as here, the People lack control over the items in question and the entity in possession of them is not a law enforcement agency”. Concur—Murphy, P. J., Rubin, Kupferman and Williams, JJ.