People v. Fiacco
| Decision Date | 18 April 1991 |
| Citation | 172 A.D.2d 994,569 N.Y.S.2d 219 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Paul J. FIACCO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Martin Brickman, Albany, for appellant.
James P. Canfield, Dist. Atty. (Karen Eileen Carlson, of counsel), Courthouse, Troy, for respondent.
Before CASEY, J.P., and MIKOLL, YESAWICH, MERCURE and CREW, JJ.
Appeal from a judgment of the County Court of Rensselaer County (Dwyer, Jr., J.), rendered June 22, 1988, which resentenced defendant following his conviction of the crimes of assault in the second degree and criminal mischief in the fourth degree.
In the evening of December 2, 1985, defendant was operating an automobile suspected of being involved in a hit and run accident in the City of Rensselaer, Rensselaer County. A police officer, who had been flagged down by a witness, approached defendant's car and spoke to defendant. An altercation ensued, as the result of which defendant was arrested and subsequently indicted for assault in the second degree (two counts), criminal mischief in the third degree, criminal mischief in the fourth degree, resisting arrest and disorderly conduct. Defendant was convicted, after trial, of one count of assault in the second degree, criminal mischief in the fourth degree and resisting arrest. County Court dismissed the resisting arrest conviction on defendant's postconviction motion and sentenced defendant to 3 1/2 to 7 years in prison on the assault conviction, said sentence to run concurrently with a term of one year imposed on the criminal mischief conviction.
During the course of the trial defense counsel had occasion to subpoena records from the Rensselaer Police Department. While reviewing those records counsel discovered three statements which, concededly, constituted Rosario material and which had not been provided to him pursuant to CPL 240.45(1)(a). Defendant moved to dismiss the indictment, which motion was denied. Defendant argues that since the prosecution never provided him with the Rosario material, the indictment should have been dismissed. We disagree.
If defendant had never received the subject material, the remedy would have been a new trial preceded by disclosure of the statements (People v. Novoa, 70 N.Y.2d 490, 522 N.Y.S.2d 504, 517 N.E.2d 219). That being the case, it seems specious to suggest that where defendant received the statements, albeit not from the prosecution, the indictment should have been dismissed. The relevant inquiry here is whether the delay in obtaining the statements substantially prejudiced defendant (see, People v. Ranghelle, 69 N.Y.2d 56, 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011). We hold that it did not. At the time defense counsel discovered the statements in question, the witness who had generated them had been subjected to cross-examination and was to return to the stand following the weekend recess, which he did. Defense counsel had ample time to review the materials and utilize them in any way he saw fit. There is no claim of prejudice, substantial or otherwise, by reason of the delay...
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