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People v. Machado, 90 N.Y.2d 187 (June 10, 1997).

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

  • People v. Banch, 80 N.Y.2d 610 (N.Y. 1992).
  • People v. Young, 79 N.Y.2d 365 (N.Y. 1992).
  • People v. Jackson, 78 N.Y.2d 638 (N.Y. 1991).
  • People v. Jones, 70 N.Y.2d 547 (N.Y. 1987).
  • People v. Novoa, 70 N.Y.2d 490 (N.Y. 1987).
  • People v. Ranghelle, 69 N.Y.2d 56 (N.Y. 1986).
  • People v. Perez, 65 N.Y.2d 154 (N.Y. 1985).
  • People v. Consolazio, 40 N.Y.2d 446 (N.Y. 1976), cert. denied, 433 U.S. 914 (1977).
  • People v. Crimmins, 36 N.Y.2d 230 (N.Y. 1975).
  • 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:

  • Micah A. Acoba, '99
  • Andrew F. Fowler, '98
  • Scott R. Goldsmith, '99
  • Benita Lee, '99
  • Karen E. Pawlick, '99
  • Jason A. Shrensky, '98