People v. Feerick

• Decision Date: 29 August 1996
• Parties: The PEOPLE of the State of New York, Respondent, v. Patricia FEERICK, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Mayra SCHULTZ, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. John DeVITO, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Orlando ROSARIO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 810

646 N.Y.S.2d 810

230 A.D.2d 689

The PEOPLE of the State of New York, Respondent, v. Patricia FEERICK, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Mayra SCHULTZ, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. John DeVITO, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Orlando ROSARIO, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Aug. 29, 1996.

Sylvia Wertheimer, for respondent State.

Roger Bennet Adler, for Feerick.

Richard E. Mischel, for Schultz.

Raymond E. Kerno, for DeVito.

Mark M. Baker, for Rosario.

Before SULLIVAN, J.P., and MILONAS, TOM and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Appeals from judgments, Supreme Court, New York County (Joan Sudolnik, J., at Kastigar hearing; Bonnie Wittner, J., at trial and sentence), rendered October 3, 1994 as to defendants Feerick and Rosario, and October 6, 1994 as to defendants DeVito and Schultz, convicting them, after a jury trial, of unlawful imprisonment in the second degree, official misconduct, and related counts, and sentencing Feerick, DeVito and Rosario to prison terms, unanimously held in abeyance, and the matter is remanded for a hearing in accordance herewith; order of the same court (Bonnie Wittner, J.), which denied defendants' motion pursuant to CPL 440.10 to vacate the judgment of conviction, is unanimously reversed, on the law and the facts, and the motion is granted solely to the extent of directing a hearing.

Prior to trial, a hearing was held pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 to determine if the People made any prohibited use of defendants' immunized testimony in obtaining the indictment. The People called only one witness at the hearing, an Internal Affairs Division on detective, and defendants requested all the preindictment worksheets prepared by this detective as 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). The hearing court, after reviewing the worksheets pertaining to the initial interviews of the main prosecution witnesses, granted disclosure of those documents, but denied disclosure of the remaining worksheets requested by the defense.

Under these circumstances, the hearing court should have conducted an in camera inspection of the documents to determine if they constituted Rosario material. While the representation of a prosecutor that prior statements of a witness exist will generally suffice, where a defendant can articulate a factual basis for his assertion that the prosecutor is improperly denying the existence of such statements, or that the prosecutor concedes the existence of the statements but claims they are irrelevant to the witness' testimony, it...