liibulletin-ny
EVIDENCE -- ROSARIO -- PREJUDICE - DISCLOSURE -- CPL 440.10
ROSARIO CLAIMS RAISED BY WAY OF CPL 440.10 MOTIONS MADE BEFORE DIRECT APPEAL
IS EXHAUSTED SHOULD BE REJECTED UNLESS THE VIOLATION PREJUDICED DEFENDANT.
[
SUMMARY] | [
ISSUE & DISPOSITION]
| [
AUTHORITIES CITED] | [
COMMENTARY]
SUMMARY
In a criminal case in which defendant was convicted of kidnapping and felony
assault, the prosecution failed to turn over
Rosario material. Because
this nondisclosure never became part of the record at trial, the Appellate
Division refused to rule on the alleged
Rosario violation. Thus,
while the direct appeal was pending, defendant filed a
CPL
440.10 motion to enforce his
Rosario rights. The Supreme Court
denied the motion because,
inter alia, defendant failed to prove
that he was prejudiced by the nondisclosure. The Appellate Division, holding
that a "per se" standard and not a prejudice standard applies to pre-appeal
CPL 440.10
motions, reversed and vacated the convictions.
ISSUE & DISPOSITION
Issue
Whether a prejudice standard applies to
Rosario violations raised
by
CPL
440.10 motions before exhaustion of defendant's direct appeal.
Disposition
Yes. A prejudice standard should apply to all pre-appeal
Rosario
violations raised by
CPL
440.10 motions.
AUTHORITIES CITED
Cases Cited by the Court
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People v.
Banch, 80 N.Y.2d 610 (N.Y. 1992).
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People v.
Young, 79 N.Y.2d 365 (N.Y. 1992).
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People v. Jackson, 78 N.Y.2d 638 (N.Y. 1991).
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People v. Jones, 70 N.Y.2d 547 (N.Y. 1987).
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People v. Novoa, 70 N.Y.2d 490 (N.Y. 1987).
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People v. Ranghelle, 69 N.Y.2d 56 (N.Y. 1986).
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People v. Perez, 65 N.Y.2d 154 (N.Y. 1985).
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People v. Consolazio, 40 N.Y.2d 446 (N.Y. 1976), cert. denied,
433 U.S. 914 (1977).
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People v. Crimmins, 36 N.Y.2d 230 (N.Y. 1975).
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People v. Rosario, 9 N.Y.2d 286 (N.Y. 1961), cert. denied,
368 U.S. 922 (1961).
Other Sources Cited by the Court
Related Sources
COMMENTARY
State of the Law Before Machado
In
People v. Rosario, 9 N.Y.2d 286 (N.Y. 1961),
cert. denied,
368 U.S. 866 (1961), the Court established the
Rosario rule which
requires complete disclosure of all pretrial statements of prosecution
witnesses. Failure to disclose such statements is a "per se" violation
of defendant's rights and can result in an automatic reversal of a conviction.
People v. Consolazio, 40 N.Y.2d 446 (N.Y. 1976),
cert. denied,
433 U.S. 914 (1977). Because nondisclosures are often not discovered until
after trial, New York law allows a criminal defendant to move to vacate
a conviction where "improper and prejudicial conduct" took place at trial
that does not appear in the record.
N.Y.
Crim. Proc. Law § 440.10(1)(f) (McKinney 1994 & Supp. 1997).
In
People v. Jackson, 78 N.Y.2d 638 (N.Y. 1991), the
CPL
440.10 standard, allowing for vacation of a judgment only upon a showing
of prejudice to defendant, came into conflict with the "per se" rule of
automatic reversal for
Rosario claims raised on direct appeal. The
Jackson court, having to rule upon a post-appeal
CPL
440.10 motion, found that society's interest in finality of judgments
outweighs the wholesale coverage of the
Rosario rule and adopted
the prejudice standard.
Effect of Machado on Current Law
The present case differs from
Jackson in that defendant filed his
CPL 440.10
motion prior to a ruling on his direct appeal. Defendant claims that the
same concerns for finality of judgments do not exist here.
In Machado,
the Court of Appeals held that the trial court must apply a prejudice standard
to a Rosario claim in a CPL
440.10 motion, whether pre- or post-appeal. The Court decided that
uniform application of the prejudice standard was necessary for two reasons.
First, it felt an anomaly would occur if two different meanings were ascribed
to the same statutory word - "prejudice." Machado
at 3. Second, the Court wanted to prevent the disparity in opportunity
that would arise due to the variations in the amount of time it takes to
resolve an appeal in the several Appellate Divisions. "Where the appellate
backlog is greater a defendant would have an increased opportunity for
per se reversal."
Machado at 4.
Unanswered Questions
Yet to be seen is the legislature's reaction to
Machado.
The legislature could very easily eradicate any anomaly in the language
of
CPL
440.10(f) by waiving the prejudice standard for pre-appeal motions.
If such an event were to take place, it will be interesting to see whether
the Court's "appellate backlog" argument will be strong enough to preserve
the
Machado
uniform standard.
Survey of the Law in Other Jurisdictions
While we are not aware of any other jurisdiction that has dealt with the
tension between a
Rosario-like disclosure rule and a CPL 440.10-like
motion, it should be noted that many other jurisdictions, including Texas
and Illinois, follow a prejudice standard when evidence is not presented
or disclosed by the prosecution at trial.
Alcorta
v. Texas, 355 U.S. 28 (1957) (prejudice standard used
in reversal of conviction where prosecution witness, to the knowledge of
the prosecutor, testified falsely);
Moore
v. Illinois, 408 U.S. 786 (1972) (evidence allegedly
withheld by the prosecution was not found to be material to the issue of
defendant's guilt).
Prepared By:
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Micah A. Acoba, '99
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Andrew F. Fowler, '98
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Scott R. Goldsmith, '99
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Benita Lee, '99
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Karen E. Pawlick, '99
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Jason A. Shrensky, '98