People v. Martinez

• Decision Date: 26 April 1988
• Citation: 524 N.E.2d 134,528 N.Y.S.2d 813,71 N.Y.2d 937
• Parties: , 524 N.E.2d 134 The PEOPLE of the State of New York, Respondent, v. Jimmy MARTINEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 813

528 N.Y.S.2d 813

71 N.Y.2d 937, 524 N.E.2d 134

The PEOPLE of the State of New York, Respondent, v. Jimmy MARTINEZ, Appellant.

Court of Appeals of New York.

April 26, 1988.

Alex Caspari and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Michelle L. Daly and Norman Barclay, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 119 A.D.2d 1014, 501 N.Y.S.2d 548, should be affirmed.

Defendant has been convicted of robbery, first degree, as a result of his armed hold up of a cafe during which he threatened to shoot the cashier, Efraim Gonzalez. After defendant fled the cafe Gonzalez immediately ran into the street where he saw his manager, Nelson Aleman, and told him of the crime. Aleman had seen defendant in the cafe a few minutes earlier and when he spotted him again, across the street, he chased him into the subway and onto a train. Aleman then summoned a transit police officer who arrested defendant.

Identification was the principal issue in the case and thus defendant requested and received a pretrial Wade hearing. At the hearing Gonzalez indicated that he described defendant to police officers who came to the cafe immediately after the robbery and that they wrote down the description. Apparently, this was the first indication defendant or the prosecutor had that any police personnel other than the arresting transit officer might have been involved in the case and that Rosario material undisclosed to defendant might exist ( see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 88, and codification of the rule at CPL 240.45 [1][a] ). After the jury was sworn, but prior to opening statements, defense counsel moved to preclude Gonzalez from testifying on the ground that the written record of Gonzalez's statement to the investigating police had not been served upon him.

The court held a hearing to determine whether a writing existed and whether there had been a Rosario violation. Police Officer Reycraft was called and testified that on the night of the crime she and her partner, Officer Mosely, responded to a radio call for a robbery in progress. Seconds later Gonzalez came to the car and gave the two officers a description of the robber and told them he had fled east on 49th Street with Aleman in pursuit. Officer Reycraft testified that she saw Officer Mosely writing for a few seconds while Gonzalez was talking--speed being "very important"--"just to jot down the description and get the initial information." She did not know what Mosely had written or on what form the entries were made, but apparently Mosely had been writing either in his memo book, on a "scratch 61" sheet or perhaps on both. In any event, Officer Mosely immediately transmitted Gonzalez's description of the robber over the radio and defendant was given the Sprint tape of that transmission.

Officer Mosely was unavailable at the time of trial and despite repeated and intensive investigations by the police and the District Attorney no one was able to locate any of Mosely's notes or any follow-up report filed by him.

At the conclusion of the hearing, the court denied defendant's motion to preclude Gonzalez from testifying. When it submitted the case to the jury, however, the court instructed the jurors that they could draw an adverse inference against the People because of their failure to produce Officer Mosely's notes. The court's Rosario rulings are challenged in the present appeal.

Three categories of Rosario violations are apparent from our decisions. The first includes cases involving delay in the disclosure of Rosario material. Reversal is required in such cases if the defense is...