People v. Rosario

CourtNew York Court of Appeals
Writing for the CourtFULD; FROESSEL; DESMOND, C. J., and VAN VOORHIS and FOSTER, JJ., concur with FULD; FROESSEL
Citation173 N.E.2d 881,9 N.Y.2d 286,7 A.L.R.3d 174,213 N.Y.S.2d 448
Decision Date23 March 1961
Parties, 173 N.E.2d 881, 7 A.L.R.3d 174 PEOPLE of the State of New York, Respondent, v. Luis Manuel ROSARIO, Appellant.

Page 448

213 N.Y.S.2d 448
9 N.Y.2d 286, 173 N.E.2d 881, 7 A.L.R.3d 174
PEOPLE of the State of New York, Respondent,
v.
Luis Manuel ROSARIO, Appellant.
Court of Appeals of New York.
March 23, 1961.

Page 449

[173 N.E.2d 882] [9 N.Y.2d 287] Rudolph Stand, Oscar Gonzalez-Suarez and Milton M. Rosenberg, New York City, for appellant.

Frank S. Hogan, Dist. Atty., New York City (Richard G. Denzer and Robert Popper, New York City, of counsel), for respondent.

FULD, Judge.

The appellant Luis Rosario stands convicted of murder in the first degree stemming from the death of a [9 N.Y.2d 288] restaurant proprietor shot during the course of a robbery which the appellant and two accomplices committed and, on the record before us, there can be no possible doubt of his guilt. 1 Indeed, he does not contest the sufficiency of the evidence, but he does raise a question which involves an important problem in the administration of the criminal law and merits our attention and consideration. It is the appellant's contention that the trial judge committed reversible error in refusing to turn over to defense counsel, for cross-examination purposes, statements given some time before the trial by three prosecution witnesses.

One of the three, Basilio Otero, was an eyewitness to the robbery. He had been about to leave the restaurant when the appellant, gun in hand, ordered him to the rear of the shop and into the lavatory; at the same time, he saw the other two defendants (who had been with the appellant) push the proprietor toward the rear. From behind the closed door, he heard a shot and, after a few minutes, came out to find the robbers gone. The second witness was Josephine Rodriguez, a girl friend of one of the other defendants; it was she to whom the appellant gave his gun after the robbery, informing her that he and the others had held up a man in a restaurant, taken $75 from him and 'shot him' when he refused to give them more. The third witness was the appellant's own girl friend, Jane Thompson, and to her the appellant admitted the 'shooting', stating that 'we had three guns and we shot together'.

After each of these three witnesses had concluded his or her direct testimony, defense counsel requested that the witness' prior statements be turned over to them for possible use on cross-examination. Instead, the statements were submitted to the trial judge for his inspection. After reading each statement, he announced that he found some 'variances' between

Page 450

statement and testimony and told defense counsel that they might examine and use only those portions of the statement containing the variances. In other words, he refused the request that the entire statement be given to the defense so that counsel might 'determine for themselves' whether any other portions would be helpful upon cross-examination.

[9 N.Y.2d 289] When it appears that a witness for the prosecution has made a statement to police, district attorney or grand jury, the attorney for the defendant, naturally enough, desires to see it in the hope that it may assist him to impeach and discredit that witness. The question then arises whether the statement should forthwith be delivered to the defense or whether it should be handed over only if it is found, on inspection by the court, to contain material at variance with the witness' testimony in court. The United States Supreme Court has held that a defendant 'is entitled to [173 N.E.2d 883] inspect' any statement made by the Government's witness which bears on the subject matter of the witness' testimony (see Jencks v. United States, 353 U.S. 657, 667, 668, 77 S.Ct. 1007, 1013, 1 L.Ed.2d 1103), whereas in New York we have allowed the defendant to see and use the statement only if it contains matter which is inconsistent with the testimony given by the witness from the stand. (See People v. Walsh, 262 N.Y. 140, 149, 186 N.E. 422, 425; People v. Schainuck, 286 N.Y. 161, 36 N.E.2d 94; People v. Dales, 309 N.Y. 97, 127 N.E.2d 829; People v. Bai, 7 N.Y.2d 152, 155, 196 N.Y.S.2d 87, 89.)

The procedure to be followed turns largely on policy considerations, and upon further study and reflection this court is persuaded 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. 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. (Cf. U.S.Code, tit. 18, § 3500, 18 U.S.C.A. § 3500.)

A pretrial statement of a witness for the prosecution is valuable not just as a source of contradictions with which to confront him and discredit his trial testimony. Even statements seemingly in harmony with such testimony may contain matter which will prove helpful on cross-examination. They may reflect a witness' bias,...

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1191 practice notes
  • Chrysler v. Guiney, Case No. 07-CV-8474 (KMK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 31, 2014
    ...the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83 (1963), and the New York Court of Appeals' decision in People v. Rosario, 173 N.E.2d 881 (N.Y. 1961). Rosario stands for the proposition that, as a matter of state law, "a criminal defendant is entitled to the prior statements o......
  • Taylor v. Connelly, 14-cv-612 (ADS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 7, 2014
    ...of any witness who will be called to testify on behalf of the prosecution. See N.Y.Page 19C.P.L. § 240.45(1)(a); People v. Rosario, 9 N.Y.2d 286, 288, 173 N.E.2d 881 (1961) . Such statements are known colloquially as "Rosario material." In this case, the Petitioner asserts that the prosecut......
  • Poventud v. City of N.Y., Docket No. 12-1011-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 14, 2014
    ...successfully brought a state collateral challenge to his conviction based on Brady v. Maryland, 373 U.S. 83 (1963), and People v. Rosario, 9 N.Y.2d 286 (1961). His conviction was vacated and a new trial ordered. People v. Poventud, 802 N.Y.S.2d 605, 608 (Sup. Ct. Bronx Cnty. 2005). While th......
  • Poventud v. City of N.Y., No. 12–1011–cv.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 16, 2014
    ...challenge to his conviction based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). His conviction was vacated and a new trial ordered. People v. Poventud, 10 Misc.3d 337, 802 N.Y.S.2d 605, ......
  • Request a trial to view additional results
1188 cases
  • Chrysler v. Guiney, Case No. 07-CV-8474 (KMK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 31, 2014
    ...the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83 (1963), and the New York Court of Appeals' decision in People v. Rosario, 173 N.E.2d 881 (N.Y. 1961). Rosario stands for the proposition that, as a matter of state law, "a criminal defendant is entitled to the prior statements o......
  • Taylor v. Connelly, 14-cv-612 (ADS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 7, 2014
    ...of any witness who will be called to testify on behalf of the prosecution. See N.Y.Page 19C.P.L. § 240.45(1)(a); People v. Rosario, 9 N.Y.2d 286, 288, 173 N.E.2d 881 (1961) . Such statements are known colloquially as "Rosario material." In this case, the Petitioner asserts that the prosecut......
  • Poventud v. City of N.Y., Docket No. 12-1011-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 14, 2014
    ...successfully brought a state collateral challenge to his conviction based on Brady v. Maryland, 373 U.S. 83 (1963), and People v. Rosario, 9 N.Y.2d 286 (1961). His conviction was vacated and a new trial ordered. People v. Poventud, 802 N.Y.S.2d 605, 608 (Sup. Ct. Bronx Cnty. 2005). While th......
  • Poventud v. City of N.Y., No. 12–1011–cv.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 16, 2014
    ...challenge to his conviction based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). His conviction was vacated and a new trial ordered. People v. Poventud, 10 Misc.3d 337, 802 N.Y.S.2d 605, ......
  • Request a trial to view additional results

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