Patrick J. Hynes, for Appellant.
Robert Bloom, for Respondent.
Office of the Appellate Defender, amicus curiae.
Center for Constitutional Rights, et al., amici curiae.
MEMORANDUM:
The order of the Appellate Division should be reversed and the case remitted to Supreme Court, New York County, for further proceedings in accordance with this memorandum.
Almost nineteen years ago, the defendant Dhoruba Bin Wahad was convicted of two counts of attempted murder (former Penal Law § 110/125.25) and one count of felonious possession of a weapon (former Penal Law § 265.05) in connection with a 1971 machine gun shooting of two police officers. Defendant's conviction was affirmed by the Appellate Division (51 AD2d 891) and by this Court (42 NY2d 421). In 1988, he filed a motion to vacate a judgment of conviction under CPL 440.10. In his motion papers, defendant claimed that the prosecution had failed to turn over Rosario material to which he was entitled (People v Rosario, 9 NY2d 286, cert denied, 368 US 866).
For the reasons stated in our opinion in People v Erick Jackson (___ NY2d ___ [decided today]), we conclude that in order to vacate his conviction based on his Rosario claim the defendant must demonstrate that there was a reasonable possibility that this failure to turn over Rosario material contributed to the guilty verdict against him. The defendant is entitled to a CPL 440.10 hearing to permit him to make this showing. Additionally, defendant should be permitted to address those other claims that were not reached below as a result of the disposition of his Rosario claim.
For the reasons stated in my dissenting opinion in People v Jackson (__ NY2d ___ [decided herewith]), I would conclude that defendant's postconviction motion to vacate was properly granted on the ground that the prosecution had failed to turn over certain items constituting Rosario material. In my view, no further showing need be made, since the per se rule of reversal that has long been applied in direct appeals (see, e.g., People v Jones, 70 NY2d 547) should also be applied in this CPL 440.10 proceeding. Accordingly, the order below should be affirmed.
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Order reversed and case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein. Chief Judge Wachtler and Judges Simons, Kaye and Bellacosa concur. Judge Titone dissents and votes to affirm in an opinion in which Judges Alexander and Hancock concur.