People v. Banch

• Citation: 608 N.E.2d 1069,593 N.Y.S.2d 491,80 N.Y.2d 610
• Parties: , 608 N.E.2d 1069 The PEOPLE of the State of New York, Respondent, v. Bienvenido BANCH, Appellant.
• Decision Date: 22 December 1992
• Court: New York Court of Appeals

Page 491

593 N.Y.S.2d 491

80 N.Y.2d 610, 608 N.E.2d 1069

The PEOPLE of the State of New York, Respondent, v. Bienvenido BANCH, Appellant.

Court of Appeals of New York.

Dec. 22, 1992.

[80 N.Y.2d 611] [608 N.E.2d 1070] Henry R. Deutsch and Philip L. Weinstein, New York City, for appellant.

[80 N.Y.2d 612] Richard A. Brown, Dist. Atty. of Queens County, Kew Gardens (Gary Fidel and Barbara D. Underwood, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

This appeal centers on the People's conceded failures, during a pretrial suppression hearing and again at trial, to provide defendant with several items of Rosario material. We conclude, for the reasons that follow, that there should be a new hearing and a new trial.

I.

Defendant was convicted, upon a jury verdict, of first degree manslaughter, attempted second degree murder and several related charges stemming from the shooting death of a woman on a Queens sidewalk, and the ensuing pursuit and capture of defendant by witnesses to the shooting. While being subdued, defendant wounded one of his captors, but was himself beaten on the head with an axe handle and shot in the leg.

Following his arrest and treatment for his wounds, defendant made several inculpatory statements. By pretrial motion, he unsuccessfully sought to suppress the statements on the ground that his severe injuries and sleep deprivation rendered the statements involuntary. The People's initial witness at the suppression hearing was Steven Toto, the first police officer to arrive at the scene, who found defendant scuffling with his captors and later arrested him. Officer Toto recovered a gun, holster and axe handle, and transported defendant to the site of the fatal shooting. There, defendant received first aid from an emergency medical technician before being taken to a hospital. After Toto's direct testimony at the suppression hearing, the prosecutor gave defense counsel Rosario material, including what he represented to be Officer Toto's memo book. At the conclusion of Toto's cross-examination and the testimony of other witnesses, the court ruled that defendant had knowingly and intelligently waived his rights, and denied suppression of the statements.

During Toto's subsequent trial testimony, however, it was discovered that the memo book was in fact not Officer Toto's. Defense counsel requested that Toto's trial testimony be stricken or a mistrial declared. When these applications were denied, defense counsel asked to reopen the suppression hearing so that he could cross-examine Officer Toto with the benefit of the correct memo book. The trial assistant opposed the request, stating that the wrong papers were provided "as a mistake" involving no bad faith by the prosecutor. He argued in addition that the contents of the memo book had no bearing on the issues involved in the suppression hearing. The application to reopen the hearing was denied and the trial continued.

Another trial witness, Detective Richard Sheridan, had also testified at the suppression hearing. At the hearing, he testified that he had several times over a four- or five-hour period administered Miranda warnings to defendant; that defendant's doctors had cleared him for questioning; and that he had witnessed successive statements made by defendant both at the hospital on the day of the crime and at the precinct the following day. It was not until Detective Sheridan testified at the trial, however, during defense counsel's cross-examination, that the People made available two affidavits in support of search warrants, which were prepared by Sheridan based in part on statements allegedly made by defendant. Again, the People did not dispute that the affidavits constituted Rosario material. They opposed defendant's motion for a new suppression hearing and a mistrial by asserting that defendant had not been prejudiced by their delay in disclosing the material. The court denied defendant's motions.

The People's apparent inattention to their disclosure obligation ¹ was further exposed during the trial testimony of Patrick Yella, a former Assistant District Attorney. Yella had conducted the videotaped interrogation that produced defendant's sixth inculpatory statement. The primary purpose of Yella's testimony was to lay the evidentiary foundation for the tape. He briefly described defendant's physical appearance, noting that defendant had stitches in his head, mouth and lips, and other wounds. He then identified the videotape, which bore his initials, as the one that had been prepared at the time of the interrogation. After the tape was played for the jury, defense counsel learned on cross-examination that the witness had prepared a report concerning his activities on that date.

At a sidebar conference, defense counsel requested production of the report. The trial assistant asserted that he was not aware of the report and did not have it in his possession, but believed it could be found quickly. He was given a short recess to locate the document but was unsuccessful. Although he did not have the report and had never seen it, the trial assistant asserted that it constituted attorneys' work product and contained nothing more than the name of the detective assigned to the case and a notation that a statement had been taken from the defendant. Yella, however, added that the report he prepared "also reflects the entire homicide arrest, including the officer who was first upon the scene, the names and addresses of any witnesses who were talked to or things like that." It was prepared, he said, so that the Assistant District Attorney who would present the case to the Grand Jury "could keep track of all the evidence in the case." The court denied defendant's motion to strike the testimony of the witness Yella.

Defendant was convicted of first degree manslaughter and other charges and the Appellate Division affirmed. The court concluded that defendant was not prejudiced by the delay in disclosure of Officer Toto's memo book, and that Yella's report did not contain either the statements of witnesses or interview summaries drawn from statements of witnesses and qualified as work product not subject to disclosure under CPL 240.10(2). A Judge of this Court granted defendant leave to appeal, and we now reverse.

II.

For more than 30 years, since our decision in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, it has been a fundamental precept of this State's criminal jurisprudence that the People are obligated to give to the defendant, for use during cross-examination, any nonconfidential written or recorded statements of a prosecution witness that relate to the subject matter of the witness' testimony. Prior to Rosario, the defendant was entitled to see only those statements that, in the judgment of the trial court, contained matter that was inconsistent with the witness' testimony (see, People v. Walsh, 262 N.Y. 140, 149, 186 N.E. 422).

We concluded in Rosario, however, that the potential impeachment value of a witness' prior statement could best be determined by the "single-minded counsel for the accused" (People v. Rosario, supra, 9 N.Y.2d at 290, 213 N.Y.S.2d 448, 173 N.E.2d 881) and that the trial court's evaluation was an inadequate substitute. That conclusion, based upon notions of fundamental fairness or, as we termed it in Rosario, "a right sense of justice" (id., at 289, 213 N.Y.S.2d 448, 173 N.E.2d 881), was later endorsed by the Legislature, which codified the Rosario holding and imposed a reciprocal obligation on the defendant (see, CPL 240.45). Our extension of the principle to pretrial hearings (see, People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694) was similarly codified (see, CPL 240.44).

The reasoning that spawned the Rosario rule led us also to eschew harmless error analysis in cases arising during direct appeal in which the defendant was deprived of Rosario material at trial (see, People v. Jones, 70 N.Y.2d 547, 523 N.Y.S.2d 53, 517 N.E.2d 865; People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011; People v. Perez, 65 N.Y.2d 154, 490 N.Y.S.2d 747, 480 N.E.2d 361; People v. Consolazio, 40 N.Y.2d 446, 387 N.Y.S.2d 62, 354 N.E.2d 801). Harmless error analysis in such cases would necessarily require weighing the potential impeachment value of the withheld material. An appellate court, however, is ordinarily no better equipped than the trial court to make such an evaluation, and it was the inadequacy of the trial court in that regard--as compared to single-minded counsel for the accused--that compelled the Rosario holding (see, People v. Perez, 65 N.Y.2d, at 160, 490 N.Y.S.2d 747, 480 N.E.2d 361, supra). Thus, where a defendant is deprived of Rosario material at trial, a new trial is required.

Underscoring the seriousness of the Rosario obligation, we have recognized only three exceptions to the rule of per se reversal. In cases arising on collateral review pursuant to CPL 440.10, after exhaustion of a defendant's direct appeal, a new trial is required only if the defendant can demonstrate "a reasonable possibility that the failure to disclose the Rosario material contributed to the verdict." (People v. Jackson, 78 N.Y.2d 638, 649, 578 N.Y.S.2d 483, 585 N.E.2d 795, on remittal, 593 N.Y.S.2d 410 [ordering new trial].) This exception is grounded in the public interest in the finality of judgments as expressed in CPL 440.10(1)(f). That statute, under which such collateral claims arise, affords a remedy only upon a showing of prejudice (People v. Jackson, supra, at 646, 578 N.Y.S.2d 483, 585 N.E.2d 795). ²

The second exception applies when Rosario material cannot be produced because it has been lost or destroyed (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134; People v. Haupt, 71 N.Y.2d 929, 528 N.Y.S.2d 808, 524 N.E.2d 129). We have rejected the suggestion that the only alternative is dismissal of the charges (see, People v....