People v. Consolazio

• Citation: 354 N.E.2d 801,40 N.Y.2d 446,387 N.Y.S.2d 62
• Parties: , 354 N.E.2d 801 The PEOPLE of the State of New York, Respondent, v. Anthony CONSOLAZIO, Appellant. . July, 6, 1976. Michael J. Obus, James J. McDonough and Matthew Muraskin, Mineola, for appellant. Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese, New York City and William C. Donnino, Mineola, of counsel), for respondent. Louis J. Lefkowitz, Atty. Gen. (Jules E. Orenstein, Mineola and Samuel A. Hirshowitz, New York City, of counsel), in his statutory capacity under section 71 of the Executive Law. JONES, Judge. On this appeal, we agree with defendant that under principles of double jeopardy as enunciated by the United States Supreme Court the People were barred from appealing to the Appellate Division from the trial order dismissing certain counts of defendant's indictment. We reject, however, defendant's contentions that because his challenge to the jury panel was denied and because he was denied disclosure of prosecution notes of pretrial witness interrogations, reversible error was committed with respect to those counts on which he was found guilty. During the years 1968 to 1971, appellant, an attorney, approached numerous individuals in his community with proposals that they invest in various schemes yielding quick, high interest returns. Many of these people, who had known appellant as an attorney, friend, customer, neighbor or employee, gave him money; no significant portion of any of the 'invested' funds was ever returned. In consequence appellant was indicted on 57 counts, 44 for grand larceny in the second degree and 13 for grand larceny in the third degree. At trial in Nassau County Court one count was severed; 50 counts were dismissed at the conclusion of the People's case, nine with the consent of the prosecutor; and appellant was convicted on the remaining six counts. Cross appeals were taken to the Appellate Division. On appellant's appeal the six convictions were affirmed. On the People's appeal the Appellate Division reinstated 39 of the 41 cou
• Decision Date: 17 June 1976
• Court: New York Court of Appeals

Page 62

387 N.Y.S.2d 62

40 N.Y.2d 446, 354 N.E.2d 801

The PEOPLE of the State of New York, Respondent, v. Anthony CONSOLAZIO, Appellant.

Court of Appeals of New York.

July, 6, 1976.

Michael J. Obus, James J. McDonough and Matthew Muraskin, Mineola, for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese, New York City and William C. Donnino, Mineola, of counsel), for respondent.

Louis J. Lefkowitz, Atty. Gen. (Jules E. Orenstein, Mineola and Samuel A. Hirshowitz, New York City, of counsel), in his statutory capacity under section 71 of the Executive Law.

JONES, Judge.

On this appeal, we agree with defendant that under principles of double jeopardy as enunciated by the United States Supreme Court the People were barred from appealing to the Appellate Division from the trial order dismissing certain counts of defendant's indictment. We reject, however, defendant's contentions that because his challenge to the jury panel was denied and because he was denied disclosure of prosecution notes of pretrial witness interrogations, reversible error was committed with respect to those counts on which he was found guilty.

During the years 1968 to 1971, appellant, an attorney, approached numerous individuals in his community with proposals that they invest in various schemes yielding quick, high interest returns. Many of these people, who had known appellant as an attorney, friend, customer, neighbor or employee, gave him money; no significant portion of any of the 'invested' funds was ever returned. In consequence appellant was indicted on 57 counts, 44 for grand larceny in the second degree and 13 for grand larceny in the third degree. At trial in Nassau County Court one count was severed; 50 counts were dismissed at the conclusion of the People's case, nine with the consent of the prosecutor; and appellant was convicted on the remaining six counts. Cross appeals were taken to the Appellate Division. On appellant's appeal the six convictions were affirmed. On the People's appeal the Appellate Division reinstated 39 of the 41 counts which had been dismissed over the People's objection, and the dismissal of the other two counts was affirmed.

We first deal with the appeal taken to the Appellate Division by the People from the trial order of dismissal. Under our decision in People v. Brown, 40 N.Y.2d 381, 386 N.Y.S.2d 848, 353 N.E.2d 811 (decided June 17, 1976) such appeal was barred under the Supreme Court's formulation of the right not to be placed twice in jeopardy. Accordingly, the order of the Appellate Division must be modified, and the case remitted to that court for dismissal of the appeal taken by the People to that court.

As to the six counts on which the jury returned a verdict of guilty, appellant advances several contentions that errors committed during his trial require reversal of his convictions thereon. We conclude that none of such contentions is of sufficient substance to warrant reversal; some, however, merit brief attention.

It is first contended that the prosecutor's failure to turn over certain 'worksheets' compiled in preparation for trial and the trial court's acquiescence in such refusal constituted reversible error. These worksheets were in the form of unsigned questionnaires containing printed questions (e.g., 'When did you first meet Mr. Consolazio?' 'Who introduced you to him?' and 'How did it come about that you invested with him?') and handwritten notes made by the interviewing officer that capsulized the witnesses' answers thereto. During trial defense counsel requested that the prosecution turn over (a) all exculpatory material as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 and People v. Simmons, 36 N.Y.2d 126, 365 N.Y.S.2d 812, 325 N.E.2d 139, and (b) all prior statements made by prosecution witnesses as required under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, mot. for rearg. den. 9 N.Y.2d 908, 216 N.Y.S.2d 1025, 176 N.E.2d 111, cert. den. 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, mot. for rearg. den. 14 N.Y.2d 876, 252 N.Y.S.2d 1027, 200 N.E.2d 784, mot. for rearg. den. 15 N.Y.2d 765, 257 N.Y.S.2d 1027, 205 N.E.2d 538. While the prosecutor turned over all Grand Jury testimony of each of the various witnesses, existence of the worksheets was not at that time revealed. When it came out later in the trial that such question-answer sheets did exist, defense counsel demanded their disclosure under both a Brady and a Rosario rationale. The trial court found that the worksheets did not fall within Rosario in that they constituted a person's 'conception' of what a prospective witness told him rather than the 'statements' of such witness. As to the Brady branch of the defense motion, the court refused to examine all the worksheets as requested by defense counsel but rather accepted the prosecutor's representation that nothing contained in the questionnaires constituted exculpatory material.

At the Appellate Division that court itself examined the worksheets and concluded that 'even assuming that they should have been made available to (the defense), no prejudice resulted from the failure to so make them available'. We concur in result.

With respect to the Brady aspect of appellant's argument, we agree that it was error for that court not itself to have examined the worksheets to determine whether, as claimed by the defense, such worksheets contained exculpatory material. While a prosecutor must of necessity 'have Some discretion in determining which evidence must be turned over to the defense' (People v. Fein, 18 N.Y.2d 162, 171--172, 272 N.Y.S.2d 753, 759, 219 N.E.2d 274, 278; emphasis in original), where, as here, there was some basis for argument that material in the possession of the prosecutor might be exculpatory, deference to the prosecutor's discretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial court. We have, however, examined the worksheets, as did the Appellate Division, and we agree with that court that nothing contained therein constituted exculpatory material. Thus, while we agree that the trial court erroneously relied on the representations of the prosecutor as to the nonexistence of exculpatory material, we conclude that such error was harmless. In so concluding, we find it to be of critical significance that the error related to the procedure by which it was determined that the worksheets contained no exculpatory material, not to the determination itself.

With respect to the Rosario branch of defendant's argument, we hold that the trial court erroneously concluded that the worksheets did not constitute 'prior statements' of prosecution witnesses within the contemplation of the rule of that case. The character of a statement is not to be determined by the manner in which it is recorded, nor is it changed by the presence or absence of a signature. Thus it has been held that a witness' statement in narrative form made in preparation for trial by an Assistant District Attorney in his own hand is 'a record of a prior statement by a witness within the compass of the rule in People v. Rosario * * * and therefore not exempt from disclosure as a 'work product' datum of the prosecutor'. (People v. Hawa, 15 A.D.2d 740, 224 N.Y.S.2d 156, affd. 13 N.Y.2d 718, 241 N.Y.S.2d 847, 191 N.E.2d 904; and see People v. Horton, 19 A.D.2d 80, 241 N.Y.S.2d 224, 25 A.D.2d 720, 269 N.Y.S.2d 675, affd. 18 N.Y.2d 355, 275 N.Y.S.2d 377, 221 N.E.2d 909; cf. People v. Butler, 33 A.D.2d 675, 305 N.Y.S.2d 367, affd. 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587.) Accordingly, we conclude that the prosecutor's worksheets, containing as they do abbreviated notes capsulizing witnesses' responses to questions relating directly to material issues raised on defendant's trial, fall within the reach of our holding in Rosario. Indeed this was obliquely recognized by the District Attorney, who with commendable candor informed the trial court that the signatures of the witnesses were not affixed to the questionnaire forms when completed in the hope that Rosario disclosure could thereby be obviated.

Turning then to whether the withholding of such worksheets must here result in the setting aside of ...