Flores v. Demskie, Docket No. 98-2558

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-2558
• Citation: 215 F.3d 293
• Parties: (2nd Cir. 2000) RAFAEL FLORES, Petitioner-Appellant, v. Joseph Demskie, Superintendent of Woodbourne Correctional Facility, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 293

215 F.3d 293 (2nd Cir. 2000)

RAFAEL FLORES, Petitioner-Appellant, v. Joseph Demskie, Superintendent of Woodbourne Correctional Facility, Respondent-Appellee.

Docket No. 98-2558

August Term, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: April 14, 1999

Decided: June 15, 2000

Appeal from a judgment entered in the United States District Court for the Southern District of New York (Michael B. Mukasey, Judge), denying the petitioner-appellant's petition for a writ of habeas corpus. We hold that the petitioner was denied his Sixth Amendment right to effective assistance of counsel when his state trial counsel, who was unfamiliar with the well-established New York State Rosario rule that a failure by the prosecutor to deliver a prior statement of a witness whom the prosecutor intends to call at trial constitutes per se error requiring a new trial, waived a violation of this disclosure requirement that would have entitled the petitioner to a new trial.

Reversed and remanded for the conditional granting of the writ.

JESSICA S. HENRY, Office of the Appellate Defender, New York, NY (Richard M Greenberg, of counsel), for Petitioner-Appellant.

John F. Carroll, Assistant District Attorney, Bronx, NY (Robert T. Johnson, District Attorney, Bronx County, Joseph N. Ferdenzi, Assistant District Attorney, of counsel), for Respondent-Appellee.

Before: VAN GRAAFEILAND, JACOBS, and STRAUB, Circuit Judges.

Judge Van Graafeiland dissents in a separate opinion.

STRAUB, Circuit Judge:

Petitioner Rafael Flores, a New York State prisoner, appeals from a judgment entered in the United States District Court for the Southern District of New York (Michael B. Mukasey, Judge), denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Flores argues that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel, who admitted after trial that he was unfamiliar with the well-established New York State rule that a prosecutor's failure to deliver a prior statement of a witness to be called at trial constitutes per se error requiring a new trial, see People v. Ranghelle, 69 N.Y.2d 56, 63, 503 N.E.2d 1011, 1016, 511 N.Y.S.2d 580, 585 (1986), waived a violation of this disclosure requirement that would have entitled the petitioner to a new trial, see People v. Rosario, 9 N.Y.2d 286, 173 N.E.2d 881, 213 N.Y.S.2d 448, cert. denied, 368 U.S. 866 (1961). Specifically, according to Flores, the prosecutor failed to provide the defense with a police officer's memo book containing a statement of a witness until after Flores's trial concluded, at which time Flores's trial counsel, unaware of the automatic new trial rule, excused this error by informing the trial judge that he would not have acted differently had he received the memo book prior to trial.

The District Court held an evidentiary hearing, and, in an opinion and order, found that the memo book contained the statement of a witness. However, the District Court also concluded that the statement fell within an exception to the Rosario disclosure rule for statements that are the duplicative equivalent of statements already turned over to the defense, and therefore, Flores did not suffer prejudice within the meaning of Strickland v. Washington, 466 U.S. 668 (1984). See Flores v. Demskie, 11 F. Supp. 2d 299, 302, 314 (S.D.N.Y. 1998) (citing People v. Consolazio, 40 N.Y.2d 446, 454, 354 N.E.2d 801, 387 N.Y.S.2d 62, 66 (1976), cert. denied, 433 U.S. 914 (1977)). On appeal, Flores challenges this ruling and argues that the memo book contained Rosario material that should have been disclosed and that trial counsel's waiver of this claim for a new trial rendered his performance ineffective. For the reasons that follow, we agree with Flores that he was denied effective assistance of counsel, and therefore, we reverse the District Court and remand for the conditional granting of the writ.

BACKGROUND

On November 9, 1990, Flores was convicted following a jury trial in New York State Supreme Court, Bronx County, of four counts of sodomy in the first degree, in violation of N.Y. Penal Law § 130.50, "arising out of his deviate sexual intercourse with a six-year-old boy who lived in [Flores's] apartment building." People v. Flores, 84 N.Y.2d 184, 186, 639 N.E.2d 19, 19, 615 N.Y.S.2d 662, 662 (1994). Flores's trial attorney became aware during jury selection, that the prosecution had failed to turn over the memo book containing notes taken by Officer Karen Pabon, who had interviewed the victim's mother. Because the victim's mother testified for the prosecution during the trial, pursuant to New York's Rosario rule, codified at N.Y. Crim. Proc. Law § 240.45(1)(a), the prosecutor was required to produce any written or recorded statement the witness made before the State's opening statement. Should the prosecutor fail to do so, "where a defendant is deprived of Rosario material at trial, a new trial is required" in all but a limited set of circumstances. People v. Banch, 80 N.Y.2d 610, 615, 608 N.E.2d 1069, 1072, 593 N.Y.S.2d 491, 494 (1992).

Defense counsel informed the trial judge of the prosecutor's failure to produce the memo book at the end of the State's case-in-chief. The court called this mistake "absolutely inexcusable" and told the prosecutor "[y]ou know what the Court of Appeals has said with respect to these memo books." The court went on to complain that:

Here we are at the end of the trial. Case has been pending for almost two years, and you stand there and tell me you have never given them the memo books, that's outrageous, I tell you the truth. . . . The Court of Appeals has made it clear that we have to give these memo books over to the defense and here we are, the last day, thinking of charging the jury in a case that clearly must be reversed if you don't turn over the memo books.

The judge decided not to charge the jury that day so that the prosecutor could find the memo book. However, the prosecutor was unable to do so. The trial court, recognizing that the memo book "would not be Rosario material, per se" unless it contained the statements of a witness, resolved to charge the jury, allowing defense counsel to "preserve his exceptions for the record with respect to that memo book." If the memo book became available, "if counsel feels that it's appropriate, he will make whatever motions he deems necessary on behalf of his client even to the extent of setting aside the verdict if need be."

After the jury returned its guilty verdict but before sentencing, the prosecution produced the memo book. Immediately prior to sentencing, before the judge had even begun to speak at the hearing, defense counsel informed the court that:

I have read the memo books we've been referring to throughout the history of this case. I've reviewed them, there is absolutely nothing in the memo book that would have made any difference in terms of what I did or did[ ]not do, ask or did not ask and that's about it.

Counsel then made a motion to set aside the verdict as against the weight of the evidence, which was denied. On November 9, 1990, Flores was sentenced to four concurrent terms of five to fifteen years' imprisonment.

In July 1992, before his direct appeal to the Appellate Division, First Department, was decided, Flores returned to the Supreme Court, Bronx County, and moved to set aside his conviction pursuant to N.Y. Crim. Proc. Law § 440.10. Flores argued that he was entitled to a new trial because of the alleged Rosario violation and because he was denied effective assistance of counsel when his trial attorney waived this issue. In conjunction with the latter argument, Flores submitted an affirmation from his trial counsel, who admitted that he "was not aware that the failure to turn over the memo book, unless waived, was per se reversible error that would have required vacatur of Mr. Flores' conviction." Counsel also stated that he "believed that to prevail on a Rosario claim [he] would have to show prejudice," and that he failed to discuss with Flores any issues arising from the prosecution's failure to turn over the memo book.

The trial court denied the motion on December 4, 1992. Although the court "acknowledged that it had virtually invited a new trial motion during colloquy about the missing memo book while the trial was ongoing," it stated that it expected an immediate motion pursuant to N.Y. Crim. Proc. Law § 330.30 to set aside the verdict, and not a § 440.10(1) motion two years after the verdict. Flores, 11 F. Supp. 2d at 304. The trial court concluded that Flores was procedurally barred from collaterally challenging his conviction because the memo book was part of the trial record. See N.Y. Crim. Proc. Law § 440.10(2) (b) (requiring denial of a § 440.10(1) motion where the judgment is on appeal and "sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal"). In the alternative, the court denied Flores's ineffective assistance claim on the merits. The court also expressed its belief that its disposition of the § 440.10 motion would "be incorporated in defendant's direct appeal." On February 4, 1993, a Justice of the Appellate Division, First Department, denied Flores both leave to appeal the disposition of his § 440.10 motion and his request to consolidate that appeal with his direct appeal from his judgment of conviction. Not only did this end Flores's collateral attack on his conviction in state court, see N.Y. Crim. Proc. Law § 450.15(1), but it also meant that the record created on that motion would not be incorporated into his direct appeal.

After the decision on his § 440.10 motion, Flores perfected his direct appeal - which had been filed in a timely fashion on November 29, 1990-and again raised his claims of a Rosario violation and of ineffective assistance of counsel based on...