People v. Adger

• Decision Date: 14 December 1989
• Citation: 550 N.E.2d 443,551 N.Y.S.2d 190,75 N.Y.2d 723
• Parties: , 550 N.E.2d 443 The PEOPLE of the State of New York, Respondent, v. Thomas ADGER, Appellant. The PEOPLE of the State of New York, Respondent, v. Victor AUSTIN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 190

551 N.Y.S.2d 190

75 N.Y.2d 723, 550 N.E.2d 443

The PEOPLE of the State of New York, Respondent, v. Thomas ADGER, Appellant.

The PEOPLE of the State of New York, Respondent, v. Victor AUSTIN, Appellant.

Court of Appeals of New York.

Dec. 14, 1989.

[75 N.Y.2d 724] [550 N.E.2d 444] Nancy E. Little and Philip L. Weinstein, New York City, for Thomas Adger, appellant.

David P. Greenberg and Philip L. Weinstein, New York City, for Victor Austin, appellant.

Elizabeth Holtzman, Dist. Atty. (Robin A. Forshaw, Barbara D. Underwood and Peter A. Weinstein, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The orders of the Appellate Division should be modified by remitting to Supreme Court, Kings County, for further proceedings in accordance with this memorandum, and as so modified, affirmed.

The issue in both of these cases is whether the trial court erred in failing to require the People to turn over specific documents requested by defense counsel pursuant to this court's holding in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881). In People v. IAdger, 144 A.D.2d 475, 534 N.Y.S.2d 4, the defendant was charged with robbery in the first and second degrees (Penal Law § 160.15[4]; § 160.10[1]. The prosecution turned over as Rosario material the arresting officer's memo book, the complaint report, the District Attorney's data analysis form, Grand Jury minutes containing certain testimony, and notes taken by an Assistant District Attorney. Defendant requested that the prosecution additionally turn over the Grand Jury synopsis sheet and the Early Case Assessment Bureau data sheet. The prosecution objected to providing these documents, stating that they were the work product of the District Attorney's office. The Trial Judge summarily concluded that the defense was not entitled to these two documents, and there is no indication on the record that the Trial Judge even looked at the documents before concluding that they were either not Rosario material at all or exempted from turnover under accepted principles of duplicativeness or work product.

In People v. Austin, 148 A.D.2d 542, 540 N.Y.S.2d 183, the defendant was charged with three counts of robbery in the first degree (Penal Law § 160.15[2], [3], [4]. Pursuant to the defendant's Rosario request, the prosecution turned over the arrest report, the police complaint report and the police arrest investigations report. When the defendant requested that the prosecution turn over the Grand Jury synopsis sheet and the data analysis form, a document similar to the Early Case Assessment data sheet in Adger, the prosecution objected, stating that the defendant was not entitled to these documents. The prosecution argued that the synopsis sheet was work product and was not the result of witnesses' statements reduced to writing. The prosecution maintained that the defendant was not entitled to the data analysis sheet either because it was not the result of witnesses' statements being reduced to writing. According to the prosecution, the witnesses were not present at the Early Case Assessment Bureau when the document was being prepared and the information contained in it was the product of interviews with the arresting officer. When defense counsel pointed out that the arresting officer was a testifying witness, the court concluded that the information contained in the form was hearsay. After examining the two documents, the Trial Judge concluded that the documents were not Rosario material and that the defendant was therefore not entitled to them.

We reach the same result in both of these cases, but for different reasons. We have in earlier cases determined the sort of examination that the Trial Judge must make before deciding whether documents requested by the defense constitute Rosario material (see, People v. Poole, 48 N.Y.2d 144, 149-150, 422 N.Y.S.2d 5, 397 N.E.2d 697; People v. Consolazio, 40 N.Y.2d 446, 453, 387 N.Y.S.2d 62, 354 N.E.2d 801). For that reason, we see no need to repeat the reasons and nature of the examination to be conducted.

In Adger, the trial court refused to examine at all whether the material requested by the defense was indeed Rosario material. In Austin, by contrast, the Trial Judge's examination of the two documents was a proper start. However, he erred in glossing over the fact that the data analysis form contained statements of a prosecution witness, the arresting officer.

Both cases must therefore be remitted to the trial court for a determination as to whether these defendants were entitled to the documents requested under Rosario. In Austin, because the data analysis sheet appears to contain the statements of a prosecution witness, this determination will necessarily focus on whether the sheet is exempt from production on some other grounds, e.g., because the sheet is the work product of the District Attorney's office or duplicative. If upon review of these documents, it is determined that the defendants in these two cases are entitled to them under Rosario, a new trial should be ordered in each case (see, People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011). On the other hand, if it is determined that these two defendants are not entitled to these documents, the judgments in their respective cases should be amended to reflect that determination.

TITONE, Judge (concurring).

While I agree with the result reached by the majority, I am compelled to write separately because, unlike the majority, I conclude that the trial courts need further guidance as to the scope and nature of the inquiry outlined in People v. Poole, 48 N.Y.2d 144, 149, 422 N.Y.S.2d 5, 397 N.E.2d 697; see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, rearg. denied 9 N.Y.2d 908, 216 N.Y.S.2d 1025, 176 N.E.2d 111, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 [codified in CPL 240.45(1)(a) ]. Although the majority asserts that there is "no need to repeat the reasons and nature of the examination" (majority mem., at 726, at 191 of 551 N.Y.S.2d at 444 of 550 N.E.2d), the superficial trial court review and inadequacy of the record in these cases are alone sufficient to make the need for additional guidance apparent. Since furnishing such instruction is an important part of our obligation as this State's highest court, I cannot subscribe to the narrow case-specific approach that the majority has adopted in this case. The following represents my own, somewhat broader approach to the problem presented by these cases. It is my hope that both practitioners and trial courts will find some of these thoughts helpful.

I.

The facts critical to these appeals are not in dispute. In People v. Adger, defendant was charged with robbery in the first and second degrees (Penal Law § 160.15[4]; § 160.10[1] and grand larceny in the third degree (Penal Law former § 155.30[5] [now § 155.35]. At the beginning of the trial, the prosecutor turned over to defendant, as Rosario material, the arresting officer's memo book, the complaint report, the District Attorney's data analysis form, the Grand Jury minutes of the complainant's and the arresting officer's testimony, and some notes taken by an Assistant District Attorney. When defense counsel made the court aware that he had also requested the Grand Jury synopsis sheet (synopsis sheet) and the Early Case Assessment Bureau data sheet (ECAB sheet), the prosecutor noted his opposition to the request stating simply that the synopsis sheet was the District Attorney's work product and that the ECAB sheet was also work product because it "basically, evaluates the witnesses in the case." The following exchange then occurred:

"COURT [to defense counsel]: Do you want to be heard?

"DEFENSE COUNSEL: Judge, I believe--

"COURT: Denied. You are not entitled to it. Let's go."

At trial, the complaining witness testified that defendant and two other men robbed him, at gunpoint, of his billfold and gold chain. The jury convicted defendant only on the larceny count, and he was sentenced to the minimum term permissible.

The Appellate Division affirmed, concluding that the trial court did not err in denying the defendant's request for the documents since "[n]either contained an abbreviated summary of an interview with any of the People's witnesses and, as such, did not constitute discoverable Rosario material" (144 A.D.2d 475, 534 N.Y.S.2d 4).

In People v. Austin, defendant was charged with three counts of robbery in the first degree (Penal Law § 160.15[2], [3], [4]. Prior to trial, the prosecutor turned over various documents including the arrest report, the police complaint report and the police arrest investigations report. When defense counsel requested disclosure of the Grand Jury synopsis sheet, and the data analysis form (a document similar to the ECAB sheet in Adger ), the prosecutor opposed both requests. As to the synopsis sheet, the prosecutor claimed that it was "work product" and not the result of witnesses' statements reduced to writing. Concerning the data analysis form, the prosecutor maintained that the document was not discoverable since, to the best of her knowledge, the witnesses were not present at the Early Case Assessment Bureau, where the form was presumably filled out, and the data analysis form was therefore a product of interviews with the arresting officer and not the witnesses. When defense counsel noted that the police officer was going to be a witness at trial, the prosecutor responded that the document was "hearsay." After a brief visual examination of both documents, the trial court denied defendant's request for production concluding "[t]here is absolutely nothing here which would be at all relevant to any of the constitutional requirements." The jury convicted defendant of first degree robbery and the court sentenced him as a persistent violent offender. On defendant's appeal, the Appellate Division concluded that the trial court had...