People v. Moustakis

• Decision Date: 01 April 1996
• Citation: 640 N.Y.S.2d 262,226 A.D.2d 401
• Parties: The PEOPLE, etc., Appellant, v. Teddy MOUSTAKIS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 262

640 N.Y.S.2d 262

226 A.D.2d 401

The PEOPLE, etc., Appellant, v. Teddy MOUSTAKIS, Respondent.

Supreme Court, Appellate Division,

Second Department.

April 1, 1996.

Richard A. Brown, District Attorney, Kew Gardens (Steven J. Chananie and Andrew L. Crabtree, of counsel), for appellant.

Dana Hanna, Brooklyn, for respondent.

Before BALLETTA, J.P., and RITTER, ALTMAN and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Queens County (LeVine, J.), dated February 2, 1995, which granted the defendant's motion to vacate his judgment of conviction pursuant to CPL 440.10.

ORDERED that the order is affirmed.

The People contend that the court erred in reversing the defendant's conviction based on the District Attorney's failure to turn over 16 pages of notes of detailed admissions by a prosecution witness concerning his prior criminal history. The People argue that these notes, taken during the witness's debriefing sessions, did not constitute Rosario material.

CPL 240.45(1)(a), which codifies the Rosario rule, requires that a prosecutor disclose to a defendant any pretrial statement made by a prosecution witness relating to the subject matter of the witness's testimony so a defendant may receive "the full benefit of a [prosecution] witness' statements for impeachment purposes" (People v. Ranghelle, 69 N.Y.2d 56, 62, 511 N.Y.S.2d 580, 503 N.E.2d 1011, citing People v. Poole, 48 N.Y.2d 144, 149, 422 N.Y.S.2d 5, 397 N.E.2d 697 [right to inspect statements of the prosecution witnesses is limited "insofar as the statements sought must be relevant to the subject matter of the witness' testimony"]; see also, People v. Kelly, 209 A.D.2d 436, 437, 618 N.Y.S.2d 822; People v. Rutter, 202 A.D.2d 123, 616 N.Y.S.2d 598).

Because the defendant's appeal from his judgment of conviction was pending and undecided at the time he made his motion pursuant to CPL 440.10 (see, People v. Jackson, 78 N.Y.2d 638, 578 N.Y.S.2d 483, 585 N.E.2d 795), "[t]he law is clear that a violation of the Rosario rule * * * cannot be considered harmless error even if the nondisclosed material would have been of limited impeachment value to the defense, so that the People's failure to produce 'constitute[s] per se reversible error requiring a new trial' (People v. Martinez, 71 N.Y.2d 937, 940[, 528 N.Y.S.2d 813, 524 N.E.2d 134]; see also, People v. Jones, 70 N.Y.2d 547[, 523 N.Y.S.2d 53, 517 N.E.2d 865]; People v. Perez, 65 N.Y.2d 154[, 490 N.Y.S.2d 747, 480 N.E.2d 361]; People v. Consolazio, 40 N.Y.2d 446[, 387 N.Y.S.2d 62, 354 N.E.2d 801]" (People v. Smith, 206 A.D.2d 102, 109, 618 N.Y.S.2d 649, affd. 85 N.Y.2d 1016, 630...