People v. Stern
| Decision Date | 14 November 1994 |
| Citation | 622 N.Y.S.2d 202,163 Misc.2d 746 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Allan STERN, Defendant. |
| Court | New York Supreme Court |
Robert M. Morgenthau, Dist. Atty. of New York County by James M. McGuire and Irwin Nack, Asst. Dist. Attys., New York City, for plaintiff.
Barry I. Slotnick and Mark M. Baker, New York City, for defendant.
Pursuant to CPL 440.10, defendant renewed his previously denied motion to vacate the judgment of conviction rendered January 29, 1990, convicting him after a jury trial of Murder in the Second Degree and sentencing him to an indeterminate term of from twenty-five years to life imprisonment, and to grant a new trial. The appeal from this judgment has not yet been perfected.
In this particular motion, defendant claimed that the judgment should be vacated because the prosecutor failed to provide Rosario material to the defense prior to trial, specifically four taped conversations [nos. 1, 2, 3 and 4]. The People claim that the tapes (1) were not, as a matter of law, in their possession and control and (2) were not Rosario material.
A hearing was held before me on April 19 and 22, May 26 and June 6, 1994. [By written affidavit, defendant waived his presence in Court.] Robert DaSilva, Marvin Hausman, Steven Kartagener, and Richard Yeskoo testified on behalf of the defense. Assistant District Attorney John Moscow, former Assistant District Attorney Jeffrey Schlanger, Detective Augustine Sanchez and Detective Evans Andre testified on behalf of the People. The Court called Joseph Pinheiro, an official Portuguese interpreter, specifically to verify the translation of the transcript of conversation no. 3. I found each witness' testimony, to the extent relevant to the issues before me, to be credible with one exception noted hereinafter. The final memorandum of the parties was submitted in August 1994.
As to Exhibits A1, A2 and A3 it was stipulated that they are excerpts of recorded conversations from tapes that were originally vouchered in the District Attorney's vault on December 14, 1988 and remained there until November 9, 1993. It was further stipulated that the vouchered tapes were never listened to during that time period and were never turned over to defense counsel. It was also stipulated that Exhibits A1, A3, and A4 are recorded conversations containing the voice of Robert DaSilva.
The facts as extensively briefed by both sides, to the extent relevant, are uncontroverted, with the exception as to tape no. 2.
After listening to the tapes this Court makes as a finding of fact that the tape no. 2 (Exhibit A2) does not contain the voice of Robert DaSilva.
The People contend that while they had physical possession of the tapes, the tapes were not within their control. Their argument is that since they had reason to believe the recordings violated 18 U.S.C. § 2511(1)(a), a federal criminal offense, listening to the tapes would have been a criminal violation under § 2511(1)(c). I find this argument untenable, and were it dispositive of the issues before me I would have found for the defendant.
"Under our system of law the prosecutor plays an especially sensitive and crucial role, serving both as an advocate and public officer charged with the duty not only to seek convictions but also to see that justice is done, and as a public officer he or she owes a duty of fair dealing to the accused and candor to the courts...." People v. Ramos, 201 A.D.2d 78, 90, 614 N.Y.S.2d 977 (1st Dept.1994). The People had an obligation to at least have sought an in camera determination by this Court, or to have turned over the tapes to the Federal Authorities and sought permission of them to review same. "The State has no interest in interposing any obstacle to the disclosure of the facts [citations omitted]". People v. Rosario, 9 N.Y.2d 286, 290, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). Even had they been in the possession of another law enforcement agency, the People would still have had a duty to produce the tapes. People v. Fields, 146 A.D.2d 505, 509, 537 N.Y.S.2d 157 (1st Dept.1989). The tapes finally came to the attention of the defendant as a result of a Freedom of Information Law proceeding and the issuance of an order by a Supreme Court Justice on December 1, 1993 authorizing defendant's attorney to listen to the tapes in the presence of the District Attorney.
(Incidently, if the Assistant District Attorney believed the tapes to have been contraband in violation of federal law, why were they still in the District Attorney's vault long after the conviction of the defendant?!)
The defense argues that conversation no. 1 relates to the fact that with Stern in jail DaSilva had a problem with paying his son's tuition. He further argues that defendant had been paying the tuition, and that therefore this is evidence of DaSilva's motive for "initiating the case against Mr. Stern."
As to conversation no. 3, the defense argues that since DaSilva expressed to a friend that things were bad since he was "thrown out in the street" because defendant was in jail, this demonstrated bias and hostility towards the defendant and therefore reflected on his credibility.
As stated in People v. Rosario, supra 9 N.Y.2d at 290, 213 N.Y.S.2d 448, 173 N.E.2d 881, "[o]ur decision presupposes that the statement relates to the subject matter of the witness' testimony...." (Emphasis added.) "[N]ot every statement made by a witness which reflects on his credibility should be viewed as relating to the subject matter of his testimony". People v. Perez, 65 N.Y.2d 154, 159, 490 N.Y.S.2d 747, 480 N.E.2d 361 (1985). "What is determinative is that the witness's statement be relevant to the subject matter of his/her testimony; that the statement may possibly otherwise be beneficial to the defense is of no moment". People v. Watkins, 157 A.D.2d 301, 313, 556 N.Y.S.2d 541 (1st Dept.1990).
Nothing referred to in these conversations related to the "subject matter" of DaSilva's testimony.
These statements by DaSilva to third parties about financial hardship resulting from his cooperating with law enforcement, it is argued, are further evidence of bias against the defendant and therefore is Rosario material. To so find would be an unlimited extension of this rule of law. It is true that failure to produce Rosario material usually constitutes per se reversible error. See People v. Consolazio, 40 N.Y.2d 446, 454, 387 N.Y.S.2d 62, 354 N.E.2d 801 (1976); People v. Ranghelle, 69 N.Y.2d 56, 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011 (1986); People v. Novoa, 70 N.Y.2d 490, 498-499, 522 N.Y.S.2d 504, 517 N.E.2d 219 (1987). However, to be Rosario material it first must meet the test that the material must relate to the subject matter of the witnesses' testimony; it must have been relevant to the testimony of DaSilva at trial. See People v. Palmer, 137 A.D.2d 881, 524 N.Y.S.2d 564 (3rd Dept.), appeal denied, 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 58 (1988). These tapes were not. See People v. Watkins, supra 157 A.D.2d at 313, 556 N.Y.S.2d 541; People v. Rothman, 117 A.D.2d 535, 536, 498 N.Y.S.2d 811 (1st Dept.1986), aff'd 69 N.Y.2d 767, 513 N.Y.S.2d 113, 505 N.E.2d 623 (1987); People v. Ramos, supra 201 A.D.2d at 86, 614 N.Y.S.2d 977.
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