People v. LaSalle

• Decision Date: 06 October 1997
• Citation: 663 N.Y.S.2d 79,243 A.D.2d 490
• Parties: , 1997 N.Y. Slip Op. 8121 The PEOPLE, etc., Respondent, v. Ruben LaSALLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 79

663 N.Y.S.2d 79

243 A.D.2d 490, 1997 N.Y. Slip Op. 8121

The PEOPLE, etc., Respondent, v. Ruben LaSALLE, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 6, 1997.

Lynn W.L. Fahey, New York City (Steven R. Bernhard, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Sholom J. Twersky, of counsel), for respondent.

Before JOY, J.P., and GOLDSTEIN, FLORIO and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vaughan, J.), rendered August 9, 1995, convicting him of sodomy in the first degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

It is beyond cavil that reversal is required when the prosecution fails to turn over Rosario material (see, People v. Machado, 90 N.Y.2d 187, 659 N.Y.S.2d 242, 681 N.E.2d 409; People v. Banch, 80 N.Y.2d 610, 593 N.Y.S.2d 491, 608 N.E.2d 1069; see generally, 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). Further, under CPL 240.45(1)(a), which codified the Rosario rule (see, People v. Washington, 86 N.Y.2d 189, 191-192, 630 N.Y.S.2d 693, 654 N.E.2d 967; People v. Kanani, 226 A.D.2d 226, 641 N.Y.S.2d 26), upon demand by the defendant, and, in a trial before a single judge, after the commencement of the trial and before the submission of evidence, the prosecutor is required to turn over the following material (unless protected by court order):

"Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony" (CPL 240.45[1][a] ).

The complainant in this case is a mentally-disabled woman who alleges that she was sodomized by the defendant, who was a worker in the group home where she lives. Prior to her testimony before the Grand Jury, the District Attorney apparently elected to have her competency examined by a Judge at a so-called "swearability" hearing rather than, as permitted, by the District Attorney (see, CPL 190.30[6] ). At that hearing the complainant was asked, inter alia, the following:

"THE COURT: You know you are going to testify concerning a Mr. LaSalle, Ruben LaSalle?

[THE COMPLAINANT]: It is my bus.

MS. WHITHAM [the resident manager of the complainant's group home]: Her bus company is LaSalle Bus Company. She hasn't heard his last name.

THE COURT: I am very sorry, okay. You are going to testify about some person; is that right?

[THE COMPLAINANT]: That's true, yes."

Clearly, this qualifies as material required to be turned over by the People. Also, it is clear that the identity of the complainant's attacker would be a disputed issue at the trial. Thus, the obvious unfamiliarity of the complainant with her attacker's full name is clearly relevant.

Therefore, we must reluctantly disagree with our dissenting colleague's interpretation of the term "subject matter". The testimony of a witness as to the identity of the perpetrator of a crime has been characterized as not only the subject matter of a trial, but at times as the central or primary issue (see, e.g., People v. Allweiss, 48 N.Y.2d 40, 421 N.Y.S.2d 341, 396 N.E.2d 735; People v. Mack, 235 A.D.2d 548, 653 N.Y.S.2d 933). We also do not agree that People v. Watkins, 157 A.D.2d 301, 556 N.Y.S.2d 541 is analogous to this case. The issue there was the failure to disclose a statement as to police overtime, which went merely to general credibility. It was not, in and of itself, a central issue at the trial. Here, the attacker's identity was an issue at the trial, and the complainant's prior statements with reference thereto should have been subject to proper exploration.

The People failed to supply the defendant with a copy of the transcript of the complainant's first swearability hearing, which was conducted as part of the Grand Jury proceedings in this matter, notwithstanding a prior request to do so, and there was no disclosure of this material or its "duplicative equivalent" (see, CPL 190.25[4][a]; 190.30[6]; see also, People v. Rivera, 151 A.D.2d 618, 542 N.Y.S.2d 366; People v. Gallo, 69 A.D.2d 1001, 416 N.Y.S.2d 140). Therefore, a new trial is mandatory (see, CPL 240.20; see, People v. Machado, 90 N.Y.2d 187, 659 N.Y.S.2d 242, 681 N.E.2d 409, supra; People v. Banch, 80 N.Y.2d 610, 593 N.Y.S.2d 491, 608 N.E.2d 1069, supra; see generally, People v. Rosario, supra).

The defendant's remaining contentions are academic in light of this determination.

JOY, J.P., and GOLDSTEIN and FLORIO, JJ., concur.

LUCIANO, Justice, dissents and votes to affirm with the following memorandum:

The defendant, Ruben LaSalle, was convicted of sodomy in the first degree, based upon an act committed upon a mentally-impaired person at her residential group home.

I respectfully disagree with the majority's opinion that a new trial is mandatory based on the assumption that the transcript of the complainant's first hearing to determine whether she had the capacity to be sworn, which was held prior to her Grand Jury testimony, constituted Rosario material because "the questioning touched upon issues which are arguably relevant to the testimony she gave at this trial".

The fundamental question herein is whether the complaining witness made a prior statement relating to her trial testimony on the issue of the corpus delicti of the crime.

Since the Court of Appeals decided 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 in 1961 "it has been a fundamental precept of this State's criminal jurisprudence that the People are obligated to give to the defendant, for use during cross-examination, any nonconfidential written or recorded statements of a prosecution witness that relate to the subject matter of the witness' testimony" (People v. Banch, 80 N.Y.2d 610, 615, 593 N.Y.S.2d 491, 608 N.E.2d 1069).

In those instances where such prior statements are unrelated to the subject matter of the witness's prospective trial testimony on the issue of guilt or innocence, the prosecution has no obligation to provide the defendant with such a witness's prior statements (see, People v. Mobley, 190 A.D.2d 821, 593 N.Y.S.2d 839; People v. Davis, 183 A.D.2d 474, 583 N.Y.S.2d 412; People v. Goldman, 175 A.D.2d 723, 573 N.Y.S.2d 282; People v. Deas, 174 A.D.2d 751, 571 N.Y.S.2d 778; People v. Barrios, 163 A.D.2d 579, 559 N.Y.S.2d 31; People v. Fluellen, 132 A.D.2d 455, 517 N.Y.S.2d 512). The majority's decision does not state a rule contrary to this principle.

In general, the issues explored at a hearing to determine whether an individual has the capacity to be sworn are unrelated to the basic issues of guilt or innocence at trial (see, People v. Morales, 80 N.Y.2d 450, 453, 591 N.Y.S.2d 825, 606 N.E.2d 953). Thus, the testimony of a witness at a hearing to determine testimonial capacity pursuant to CPL 60.20(1) is not Rosario material.

The majority's opinion is posited on a brief segment of the first hearing to determine if the complainant had the capacity to be sworn, at which there was present Eleanor Whitham, the resident manager of the group home where the complaining witness resided. At that hearing the following colloquy ensued when the complaining witness was questioned by the court:

"THE COURT: You know you are going to testify concerning a Mr. LaSalle, Ruben LaSalle?

[THE COMPLAINANT]: It is my bus.

MS. WHITHAM: Her bus company is LaSalle Bus Company. She hasn't heard his last name.

THE COURT: I am very sorry, okay. You are going to testify about some person; is that right?

[THE COMPLAINANT]: That's true, yes."

The purpose of a hearing to determine testimonial capacity is to inquire (a) whether the witness has sufficient intelligence and capacity to justify the reception of his or her testimony into evidence, and (b) if the testimony is to be under oath, whether the witness has sufficient capacity to appreciate the obligations of an oath and the consequences of giving false testimony (see, People v. Parks, 41 N.Y.2d 36, 390 N.Y.S.2d 848, 359 N.E.2d 358; People v. Nisoff, 36 N.Y.2d 560, 369 N.Y.S.2d 686, 330 N.E.2d 638). In furtherance of these central objectives the court mentioned the defendant's name which, the record reveals, had not previously been heard by and was not known to the complaining witness, to whom the name "LaSalle" meant only her bus company.

There is no dispute that if a witness's prior statement relates to the subject matter of the witness's trial testimony on the issue of guilt or innocence, the statement must be provided as Rosario material. It is not for a court to determine whether the statement has potential impeachment value (see, People v. Banch, supra, at 615, 593 N.Y.S.2d 491, 608 N.E.2d 1069 ["An appellate court, however, is ordinarily no better equipped than the trial court to make such an evaluation, and it was the inadequacy of the trial court in that regard--as compared to single-minded counsel for the accused--that compelled the Rosario holding"]; accord, People v. Perez, 65 N.Y.2d 154, 160, 490 N.Y.S.2d 747, 480 N.E.2d 361).

Here, however, there is no viable basis by which it can be maintained that the complaining witness made a...