People v. Washington

• Decision Date: 14 June 1995
• Citation: 654 N.E.2d 967,86 N.Y.2d 189,630 N.Y.S.2d 693
• Parties: , 654 N.E.2d 967 The PEOPLE of the State of New York, Respondent, v. Joshua WASHINGTON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 693

630 N.Y.S.2d 693

86 N.Y.2d 189, 654 N.E.2d 967

The PEOPLE of the State of New York, Respondent, v. Joshua WASHINGTON, Appellant.

Court of Appeals of New York.

June 14, 1995.

James M. Branden and Philip L. Weinstein, New York City, for appellant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Michael Gore and Roseann B. MacKechnie, of counsel), for respondent.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Linda Cantoni, Steven Chananie and Sharon Y. Brodt, of counsel), amicus curiae, pro se.

James M. Catterson, Jr., District Attorney of Suffolk County, Hauppauge (Donald J. Siewert and Patrick J. Hynes, of counsel), for New York State District Attorneys Association, amicus curiae.

OPINION OF THE COURT

SMITH, Judge.

The issue here is whether an audiotape made by an Associate Medical Examiner is Rosario material which must be turned over to defendant by the prosecutor. Because the audiotape may not be deemed in the control or possession of the People, we affirm the order of the Appellate Division refusing to vacate defendant's conviction.

Prior to defendant's trial for the fatal stabbing of Kevin Gregg, Dr. Joaquin Gutierrez, an Associate Medical Examiner of the office of the Chief Medical Examiner (OCME), performed the autopsy on the victim's body. Gutierrez testified concerning the location and extent of the victim's wounds and stated that two different knives may have been used in the killing. Defendant was convicted on April 25, 1991, after a nonjury trial, of manslaughter in the first degree.

On December 6, 1993, the Appellate Division affirmed defendant's conviction (see, People v. Washington, 199 A.D.2d 294, 604 N.Y.S.2d 593), and a Judge of this Court denied defendant's application for leave to appeal (People v. Washington, 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502). While defendant's direct appeal was pending, defendant filed a CPL 440.10 motion to vacate his conviction, contending that the People failed to relinquish an audiotape made by Dr. Gutierrez immediately after the autopsy. Supreme Court denied the motion and defendant appealed to the Appellate Division. The Appellate Division unanimously affirmed (196 A.D.2d 346, 612 N.Y.S.2d 586), and a Judge of this Court granted defendant's application for leave to appeal.

Defendant contends that the People's failure to turn over the audiotape and all memorialized statements prepared by the Medical Examiner who testified for the prosecution at trial, violated the Rosario rule as a matter of law, requiring reversal of the conviction, or a hearing to determine whether the People exert sufficient "control" over OCME. The People counter that Rosario does not compel them to provide defendant with the materials defendant seeks and that notwithstanding the issue of "control," defendant is not entitled to reversal of his conviction.

In People v. Rosario, 9 N.Y.2d 286, 289, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, we held that the People were required to provide for defendant any recorded statement of a prosecution witness made to the police, District Attorney or the Grand Jury, related to that witness' trial testimony. This rule was codified in CPL 240.45(1)(a). Rosario material has been held to include notes and follow-up reports of police officers (People v. Martinez, 71 N.Y.2d 937, 939, 528 N.Y.S.2d 813, 524 N.E.2d 134; People v. Gilligan, 39 N.Y.2d 769, 384 N.Y.S.2d 778, 349 N.E.2d 879; People v. Malinsky, 15 N.Y.2d 86, 90, 262 N.Y.S.2d 65, 209 N.E.2d 694); memo books of police officers (People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011); complaint reports filed at police precincts (id); bribe-offer statements to a witness recorded at the request of the police (People v. Perez, 65 N.Y.2d 154, 490 N.Y.S.2d 747, 480 N.E.2d 361); a police report containing statements of a witness (People v. Novoa, 70 N.Y.2d 490, 522 N.Y.S.2d 504, 517 N.E.2d 219) and worksheets of a prosecutor containing notes of oral statements by witnesses (People v. Consolazio, 40 N.Y.2d 446, 387 N.Y.S.2d 62, 354 N.E.2d 801).

In each of the aforementioned cases, it was clear that the People's Rosario obligation included the material which was not produced because it was in the actual possession of a law enforcement agency. Where the material sought is in the possession of a person or agency other than a law enforcement agency, the test of the People's obligation to produce is whether the items sought are in the "control" of the People (see, People v. Flynn, 79 N.Y.2d 879, 882, 581 N.Y.S.2d 160, 589 N.E.2d 383 [material in possession of Department of Motor Vehicles, a State administrative agency, were not in control of prosecutor]; People v. Tissois, 72 N.Y.2d 75, 78, 531 N.Y.S.2d 228, 526 N.E.2d 1086 [statements of victims of sexual abuse made to a social worker were not in control of the prosecutor]; People v. Reedy, 70 N.Y.2d 826, 827, 523 N.Y.S.2d 438, 517 N.E.2d 1324 [a personal account of a sexual attack written by the victim, a free-lance writer, was not Rosario material which was in the control of the prosecutor]; see also, People v. Fishman, 72 N.Y.2d 884, 532 N.Y.S.2d 739, 528 N.E.2d 1212 [untranscribed plea minutes were not Rosario material which the People were required to produce].

Turning to the case before us, it is clear that the duties of OCME are, by law, independent of and not subject to the control of the office of the prosecutor, and that OCME is not a law enforcement agency. The Medical Examiner is required to perform an autopsy in cases where a homicide is being investigated (Public Health Law § 4210[2]; § 4210-c[2]; NY City Charter § 557[f]. According to section 557(g) of the NY City Charter, the Chief Medical Examiner must maintain "full and complete records in such form as may be provided by law" and "shall promptly deliver to the appropriate district attorney copies of all records relating to every death" where in the opinion of the Medical Examiner some indication of criminality exists. Administrative Code of the City of New York §§ 17-202 and 17-203 also require OCME to consider the circumstances surrounding a death to determine the cause, especially where foul play is suspected. The mandate to OCME is clear, to provide an impartial determination of the cause of death. That, however, cannot be equated with control by the People, which is essential to the Rosario obligation. The People have no power to dictate the contents or practices within OCME. Moreover, Medical Examiners have no authority to gather evidence with an eye toward prosecuting a perpetrator. Neither the New York City Charter nor the Administrative Code requires that they have training in law enforcement.

Although it was defendant's responsibility to subpoena the audiotape, we caution that nothing here should be construed to "dilute the Rosario obligation" (see, People v. Ranghelle, 69 N.Y.2d 56, 64, 511 N.Y.S.2d 580, 503 N.E.2d 1011, supra ). Rather, that obligation simply does not arise where, as here, the People lack control over the items in question and the entity in possession of them is not a law enforcement agency (see, People v. Reedy, 70 N.Y.2d 826, 827, 523 N.Y.S.2d 438, 517 N.E.2d 1324, supra; People v. Flynn, 79 N.Y.2d 879, 882, 581 N.Y.S.2d 160, 589 N.E.2d 383, supra ).

Because we have determined that the People do not have sufficient "possession or control" over documents maintained by OCME, we need not address whether the audiotape would have constituted a "duplicative equivalent" of the information contained in the autopsy report. Moreover, nothing in this record indicates that the defendant should receive a hearing on the issue of control. The facts here are distinguishable from instances where the defendant seeking evidence has not had the opportunity to determine whether the evidence is within the People's control. Illustrative of this point is our decision in People v. De Jesus, 69 N.Y.2d 855, 514 N.Y.S.2d 708, 507 N.E.2d 301. De Jesus involved an 11-year-old child's claim that her father had raped and sexually abused her. The defendant sought statements the child made to a social worker employed by the Bureau of Child Welfare. The People's objection to the defendant's request was sustained on grounds differing from those the People argued at this Court. Because the trial court did not have the opportunity to address the People's subsequent contentions here, that the statements were privileged under CPLR 4508 and that nothing in the prosecutor's possession was relevant to the defendant's case, we were compelled to remand for a new trial. Here, defendant and the trial court have had ample opportunity to address the People's consistent position--that they do not exert sufficient control over OCME to require production of the audiotape. Thus, we hold that, on the facts presented, defendant was not entitled to have the prosecutor produce the audiotape made subsequent to the autopsy.

Accordingly, the order of the Appellate Division should be affirmed.

TITONE, Judge (dissenting).

When the office of the Chief Medical Examiner (OCME) investigates the circumstances surrounding a death by homicide, it is acting in the capacity of a law enforcement agency. Further, when such an investigation generates reports and other documentary material, those reports and material are, by statute, within the People's direct and immediate control. The combination of these factors makes OCME reports and related documents Rosario material within the meaning of CPL 240.45. Since the majority holds otherwise, I dissent.

Initially, the majority's rationale is flawed because it confuses the People's control over the documents--a critical issue in Rosario analysis--with the People's control over the documents' contents and the entity that created the documents--considerations that are irrelevant in this context. The majority's only explanation for its holding on the...