People v. Vacante
| Decision Date | 02 November 1992 |
| Parties | The PEOPLE, etc., Respondent, v. Vincent VACANTE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Jonathan Garelick and William Carney, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Richard T. Faughnan, and Monique Ferrell, of counsel), for respondent.
Before BALLETTA, J.P., and MILLER, PIZZUTO and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered November 8, 1989, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the matter is remitted to the Supreme Court, Kings County, to hear and report on the question of whether the "Unusual Occurrence Report" at bar was prepared by a witness for the People at the trial, or contains statements by a People's witness which were overheard by the person who prepared the report, and the appeal is held in abeyance in the interim. The Supreme Court shall file its report with this court with all convenient speed.
Approximately 10 months after the conclusion of the defendant's trial, the People turned over to the defendant a document that had not been disclosed to the defense during trial. The document purports to be an unofficial confidential report of information the author "feel[s] should be brought to the attention of the [commanding officer]". After the existence of the document was revealed, the parties stipulated that the document had not been "provided to the defense at the trial level" and that it would become part of the record on appeal. The defendant now claims that his conviction must be reversed because the People's failure to disclose this confidential report in a timely manner constituted a Rosario violation. In response, the People argue, inter alia, that no Rosario violation was proven because it was unclear who had authored the confidential report.
The document in question is a confidential police report that contains statements concerning, inter alia, criminal acts involving the decedent and his relationship to the defendant. However, the report does not indicate who authored it and since "[t]he Rosario rule only involves 'the use of a recorded prior statement which was made either by the witness himself or by an individual who directly heard the statement' " (People v. Miller, 183 A.D.2d 790, 791, 583...
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...finding that there had been no Rosario violation (see, People v. Miller, 183 A.D.2d 790, 583 N.Y.S.2d 517; cf., People v. Vacante, 187 A.D.2d 470, 589 N.Y.S.2d 894). Moreover, we find that the trial court did not err in failing to give an agency defense charge. Upon viewing the evidence in ......
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