PEOPLE & C., APPELLANT, v. DONALD CALLENDAR, RESPONDENT.

90 N.Y.2d 831, 683 N.E.2d 332, 660 N.Y.S.2d 710 (1997).
June 10, 1997

This memorandum is uncorrected and subject to revision before publication in the New York Reports.
Seth M. Lieberman, for appellant.
Andrea G. Hirsch, for respondent.

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 William Machado, No. 117 [decided today]). Having failed to raise this specific issue before the hearing court, the People have not preserved their claim for our review.

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Order affirmed, in a memorandum. Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Decided June 10, 1997