People v. Cadby
| Citation | 75 A.D.2d 713,427 N.Y.S.2d 121 |
| Parties | PEOPLE of the State of New York, Respondent, v. Walter CADBY, Appellant. |
| Decision Date | 08 April 1980 |
| Court | New York Supreme Court Appellate Division |
Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo by Paul J. Cambria, Jr., Buffalo, for appellant.
Edward C. Cosgrove, Dist. Atty., Buffalo by Kurt T. Sajda, Buffalo, for respondent.
Before CARDAMONE, J. P., and SIMONS, CALLAHAN and MOULE, JJ.
Defendants were convicted, following a joint trial by jury, of sodomy in the first degree and two counts of sexual abuse in the first degree. At trial the court granted defense counsel's request pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 for the prior statements of prosecution witnesses for use on cross-examination. During cross-examination of the People's last witness, a police officer, it was discovered that he had prepared a police report which contained statements of the complainant that had not been given to defense counsel. Although the court made this report available to defense counsel at that time, it denied defendants' motion for a mistrial, holding that it was duplicative of complainant's testimony. The police report prepared by the police officer based upon complainant's statements is a prior statement of a witness to which defendants were entitled (People v. Consolazio, 40 N.Y.2d 446, 387 N.Y.S.2d 62, 354 N.E.2d 801, cert. den. 433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100). "(A) failure to turn over Rosario material may not be excused on the ground that such material would have been of limited or of no use to the defense, or that a witness' prior statements were totally consistent with his testimony at trial" (People v. Consolazio, supra, p. 454, 387 N.Y.S.2d p. 66, 354 N.E.2d p. 805). The failure to turn over Rosario material may, however, constitute harmless error where it contains nothing more than "duplicative equivalents of statements previously turned over to the defense" (People v. Consolazio, supra, p. 454, 387 N.Y.S.2d p. 66, 354 N.E.2d p. 805; People v. Thomas, 65 A.D.2d 933, 934, 410 N.Y.S.2d 438). On this record, we cannot determine whether the trial court's ruling with respect to the prior statements contained in the police report was harmless. Neither the grand jury testimony of the complainant nor her prior statements which were given to defendants are included in the record. Consequently, the matter must be remitted for a hearing at which all prior statements of the complainant relating to the subject matter of her testimony should be produced and a determination made as to whether the withheld statements were merely duplicative equivalents of statements previously turned over to the defense (People v. Thomas, supra, p. 934, 410 N.Y.S.2d 438).
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