People v. Bell

• Decision Date: 10 July 1995
• Citation: People v. Bell, 629 N.Y.S.2d 89, 217 A.D.2d 585 (N.Y. App. Div. 1995)
• Parties: The PEOPLE, etc., Respondent, v. Andrew BELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 89

629 N.Y.S.2d 89

217 A.D.2d 585

The PEOPLE, etc., Respondent, v. Andrew BELL, Appellant.

Supreme Court, Appellate Division Second Department.

July 10, 1995.

Daniel L. Greenberg, New York City (Allen Fallek, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Anne C. Feigus and Annette G. Hasapidis-Marshall, of counsel), for respondent.

Before BRACKEN, J.P., and ROSENBLATT, RITTER and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered June 8, 1993, convicting him of attempted murder in the second degree, assault in the first degree, and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

Under the particular circumstances of this case, the Supreme Court erred in refusing to impose any sanctions based upon the prosecution's failure to produce Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) consisting of a police officer's handwritten notes. We do not believe that the typewritten complaint report, which was furnished at trial, can be considered to be the duplicative equivalent of the officer's notes. The officer himself was unable to compare the two documents and the evidence is otherwise insufficient to establish that "the content of the subject scratch notes had been accurately transcribed onto [the] official complaint report" (People v. Thomas, 202 A.D.2d 525, 526, 609 N.Y.S.2d 621; see also, People v. Jordan, 207 A.D.2d 700, 616 N.Y.S.2d 495; cf., People v. Nieves, 205 A.D.2d 173, 184-185, 617 N.Y.S.2d 751; People v. Boyd, 189 A.D.2d 433, 438-440, 596 N.Y.S.2d 760; People v. Holmes, 188 A.D.2d 618, 591 N.Y.S.2d 501; People v. Hyde, 172 A.D.2d 305, 568 N.Y.S.2d 388). Considering the nature of the content of the report in question, we also find that there was an adequate demonstration of prejudice (see, People v. Jordan, supra; People v. Schoolfield, 196 A.D.2d 111, 608 N.Y.S.2d 413). The appropriate sanction would have been to deliver an adverse inference charge (see, People v. Walker, 209 A.D.2d 460, 618 N.Y.S.2d 449).

Further, the complaining witness was permitted to testify concerning two occasions, both subsequent to the incident which forms the basis for the indictment, on which the defendant fired shots at him. Under the...