People v. Jackson

• Decision Date: 19 December 1991
• Citation: 78 N.Y.2d 638,578 N.Y.S.2d 483,585 N.E.2d 795
• Parties: , 585 N.E.2d 795 The PEOPLE of the State of New York, Appellant, v. Erick JACKSON, also known as Eric Knight, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 483

578 N.Y.S.2d 483

78 N.Y.2d 638, 585 N.E.2d 795

The PEOPLE of the State of New York, Appellant, v. Erick JACKSON, also known as Eric Knight, Respondent.

Court of Appeals of New York.

Dec. 19, 1991.

[78 N.Y.2d 639] [585 N.E.2d 796] Charles J. Hynes, Dist. Atty., Kings County (Michael Gore and Jay M. Cohen, Brooklyn, of counsel), for appellant.

Stephen C. Glasser, Staten Island, and Robert G. Sullivan, New York City, for respondent.

[78 N.Y.2d 640] Robert M. Morgenthau, Dist. Atty. (Mark Dwyer and Patrick J. Hynes, New York City, of counsel), for New York County Dist. Atty., amicus curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Eleven years ago, the defendant Erick Jackson was convicted of six counts of felony murder and one count of second degree arson in connection with a fire at a Waldbaum's supermarket in Brooklyn that tragically claimed the lives of six New York City firefighters. Three years after his direct appeal was exhausted, defendant brought a motion to vacate his conviction pursuant to CPL 440.10 based on the People's failure to supply him with a memorandum that contained the statement of a prosecution witness. The defendant claims that this was Rosario material and, therefore, the People should have turned it over to defendant during the trial (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).

On this appeal, we revisit the cases that grew out of our decision in Rosario, cases in which we stated and refined a per se error rule that called for reversal whenever the prosecution completely failed to turn over Rosario material. In People v. Consolazio, 40 N.Y.2d 446, 454, 387 N.Y.S.2d 62, 354 N.E.2d 801, we first held that harmless error analysis was inappropriate when a defendant challenged the prosecution's failure to turn over Rosario material. Since Consolazio, we have articulated the policy reasons for adopting a per se error rule for Rosario violations and have repeatedly reaffirmed our commitment to that rule (see, e.g., People v. Jones, 70 N.Y.2d 547, 523 N.Y.S.2d 53, 517 N.E.2d 865; People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011; People v. Perez, 65 N.Y.2d 154, 490 N.Y.S.2d 747, 480 N.E.2d 361).

In each of these cases, however, the defendant's Rosario claim was the subject of a direct appeal from the judgment of conviction. Even People v. Novoa, 70 N.Y.2d 490, 522 N.Y.S.2d 504, 517 N.E.2d 219), in which the defendant's Rosario claim was the subject of both direct appeal and a CPL 440.10 motion, was treated as a direct appeal for procedural purposes. We were not asked to consider at that time whether the per se error rule should be extended to apply to postconviction motions to vacate under CPL 440.10.

Thus, the question before the Court today is indeed a novel one. We must decide whether the per se error rule applies to Rosario claims raised on a CPL 440.10 motion after a defendant's direct appeal has been completed. The only two subdivisions of CPL 440.10 that arguably touch upon Rosario violations both require a defendant to show that he was prejudiced by the conduct that is the subject of the motion.

In originally adopting the per se error rule, we balanced the rights of the defendant against the rights of society and arrived at a policy designed to foster the "right sense of justice" that had led this Court to fashion and impose the stringent discovery requirements that are at the heart of the Rosario decision. Here, however, the Legislature has already spoken and required defendants filing CPL 440.10 motions to make a showing of prejudice. Given the policy concerns underlying this prejudice requirement, including society's interest in the finality of judgments, we conclude that prejudice cannot be assumed and must be articulated. Thus, we hold that a defendant who has exhausted direct appeal and who seeks to raise a Rosario claim by way of a CPL 440.10 motion will be required to make an actual showing that prejudice resulted from the prosecution's failure to turn over Rosario material. Accordingly, we now reverse and remit.

I.

A detailed account of the events leading up to the defendant's conviction for felony murder and arson is contained in this Court's opinion disposing of defendant's direct appeal from his judgment of conviction (65 N.Y.2d 265, 491 N.Y.S.2d 138, 480 N.E.2d 727). Since 1985, the year his conviction was affirmed, defendant has twice moved to have that conviction vacated pursuant to CPL 440.10. The first such motion, based on ineffective assistance of trial and appellate counsel, was denied by the trial court in 1986.

The motion at issue on this appeal was brought in July of 1988. The defendant again claimed on this motion that the representation provided by his trial attorney had been ineffective, and additionally claimed that he had been deprived of Brady material (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). The trial court notified the People and defense counsel that it would also treat the defendant's motion as raising a claim for relief under Rosario. During the hearings on the motion, the People conceded that the defendant had not been given a memorandum that contained a synopsis of an interview with a fire marshal who later testified for the prosecution at trial. The People also acknowledged that the memorandum was not the duplicative equivalent of material that had been turned over to the defendant (see, e.g., People v. Consolazio, supra, 40 N.Y.2d at 454, 387 N.Y.S.2d 62, 354 N.E.2d 801). In a memorandum decision dated November 7, 1988, the Trial Judge granted defendant's motion to vacate his judgment of conviction. Citing this Court's decision in Novoa (supra), the Trial Judge rejected the People's argument that the defendant needed to show that he had been prejudiced by the Rosario violation. The Appellate Division affirmed the trial court's order, relying on language from Novoa, Jones, and Ranghelle (supra) for its conclusion that harmless error analysis was not appropriate with respect to a Rosario violation. 162 A.D.2d 470, 556 N.Y.S.2d 165. A Judge of this Court granted the People's motion for leave to appeal.

II.

Prior to our holding in Rosario, a defendant was permitted to inspect only those statements of prosecution witnesses that contained matter inconsistent with the testimony given by the witness on the stand (see, e.g., People v. Walsh, 262 N.Y. 140, 149, 186 N.E. 422). In Rosario, we concluded that "a right sense of justice entitles the defense to examine a witness' prior statement, whether or not it varies from his testimony on the stand" (id., 9 N.Y.2d at 289, 213 N.Y.S.2d 448, 173 N.E.2d 881). "As long as the statement relates to the subject matter of the witness' testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination" (id., at 289, 213 N.Y.S.2d 448, 173 N.E.2d 881). The Court reasoned that "single-minded counsel for the accused" was better able than the presiding Judge to assess the usefulness of witness statements for impeachment purposes (id., at 290, 213 N.Y.S.2d 448, 173 N.E.2d 881). We acknowledged at that time that our decision "turn[ed] largely on policy considerations" (id., at 289, 213 N.Y.S.2d 448, 173 N.E.2d 881). Thus, our characterization of this decision as policy based is not, as the dissent would suggest, a post hoc departure from reason and logic, but a reiteration of the rationale for the decision, in the very language used by the Rosario majority.

The per se error rule is not found in Rosario, however. In that case, the Court applied a harmless error analysis, looking to whether "there was a rational possibility that the jury would have reached a different verdict if the defense had been allowed the use of the witness' prior statements" (id., at 291, 213 N.Y.S.2d 448, 173 N.E.2d 881). The Court concluded that the violation at issue in Rosario was indeed harmless and affirmed the defendant's judgment of conviction.

As noted above, this Court first applied the per se error rule in People v. Consolazio, 40 N.Y.2d at 454, 387 N.Y.S.2d 62, 354 N.E.2d 801, supra). In People v. Perez (supra), we explained our adherence to the per se error rule by looking to the policy considerations that had led to the Rosario decision. We noted that "[t]he essence of the Rosario requirement, that the prosecutor supply all of a witness' statement or statements relating to his testimony, is that a judge's impartial determination as to what portions may be useful to the defense, is no substitute for the single-minded devotion of counsel for the accused. Appellate judges have no advantage over trial judges in making such a determination" (People v. Perez, supra, 65 N.Y.2d at 160, 490 N.Y.S.2d 747, 480 N.E.2d 361).

We again applied the per se error rule in People v. Ranghelle (supra) in which we refused to recognize a good-faith exception that would excuse the prosecution's failure to turn over Rosario material (People v. Ranghelle, supra, 69 N.Y.2d at 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011). In People v. Jones (supra), the People argued that Ranghelle was an illogical and aberrational decision that would wreak havoc on the criminal justice system of this State. In the face of this direct challenge to the line of per se error cases culminating in Ranghelle, we refused to cut back on our commitment to the per se error rule for Rosario claims. In Jones a majority of the Court stated that "[i]t is defense counsel alone who has the responsibility for making the strategic judgments and doing the careful preparation required for planning and executing an effective cross-examination of the People's witnesses and deciding whether and how to use the statements. When, as a result of the prosecutor's violation of the Rosario rule, defense counsel has been deprived of material of which he or ...