People v. D'Amico, No. 1

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before DOERR
• Citation: 148 A.D.2d 982,538 N.Y.S.2d 965
• Docket Number: No. 1
• Decision Date: 10 March 1989
• Parties: PEOPLE of the State of New York, Appellant, v. Anthony J. D'AMICO and Dominic Bretti, Respondents. Appeal

Page 965

538 N.Y.S.2d 965 148 A.D.2d 982 PEOPLE of the State of New York, Appellant,
v.
Anthony J. D'AMICO and Dominic Bretti, Respondents. Appeal No. 1. Supreme Court, Appellate Division,
Fourth Department. March 10, 1989.

Page 966

Barry M. Donalty by Michael Daley, Utica, for appellant.

Esther Cohen-Lee, Esq., Utica, for respondent--D'Amico.

Richard Baumgarten, Buffalo, for respondent--Bretti.

Before DOERR, J.P., and DENMAN, BOOMER, BALIO and DAVIS, JJ.

MEMORANDUM:

The People appeal from an order granting defendants' CPL article 440 motion to vacate judgments convicting them of conspiracy to murder Richard Clair. After an evidentiary hearing, the court vacated the convictions and ordered a new trial on the ground that the People had failed to supply defendants with Rosario material (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; CPL 240.45). 136 Misc.2d 16, 517 N.Y.S.2d 881. The People also appeal from an order denying their motion to reargue or renew. We find that the court properly vacated the convictions and properly denied the motion to reargue or renew.

We reject the People's argument that failure to turn over Rosario material may be excused based upon a harmless error or good faith analysis. It is clear from the record that Michael Daley, the Assistant District Attorney who prosecuted the conspiracy trial, was unaware of the existence of certain taped statements taken from an informant in March, 1980 by agents of the Organized Crime Task Force. It was not until 1982, when he was preparing to prosecute the same two defendants for the murder of Dawn Grillo, that he discovered the tapes. Although the People argue that they cannot be held responsible for failing to give that material to defendants, that argument overlooks the fact that Frank Peo, a State Police officer originally assigned to the Task Force and one of the persons who interviewed the informant, was subsequently assigned to the Oneida County District Attorney's office to assist Daley in preparation of the conspiracy case for trial. Peo obviously knew of the taped interview and he was the one who transmitt the entire file from the Task Force to Daley when it was determined that the Task Force lacked jurisdiction to prosecute.

Defendants contend that Peo's knowledge must be imputed to the People and we agree. The prosecution's failure to supply defendants with Rosario material cannot be excused by the prosecutor's ignorance of the tapes. The...