1. Whether the prosecution's failure to produce FBI reports relating to a separate investigation violates the Brady and Rosario disclosure rules.

2. Whether a trial judge's recollection of a defendant's waiver of his Antommarchi rights is sufficient evidence of such waiver, absent any evidence of the waiver in the record.

1. No. The prosecution does not violate the Brady or Rosario rules by failing to produce FBI reports not in its possession.

2. Yes. A trial judge's notes and recollection of a defendant's waiver of his Antommarchi right suffices to support a decision to reject a defendant's request for a reconstruction hearing.

An FBI agent observed Defendant dispose of two trash bags containing clothing stained with the blood of a person allegedly murdered by acquaintances of Defendant's son. The State charged Defendant with four counts of tampering with physical evidence. Before trial, the Defendant requested all Brady and Rosario material including copies of FBI reports pertaining to a prosecution witness. The District Attorney delivered all requested materials in its possession and twice informed Defendant that the United States Attorney's Office declined to provide the requested FBI reports. Defendant then argued that the State-Federal joint investigation entitled Defendant to the requested FBI reports. Finding no evidence of a joint investigation, the Trial Court rejected Defendant's argument and found all disclosure requirements satisfied. The jury convicted Defendant on all four counts.

Defendant moved to vacate his conviction, arguing that the prosecution failed to disclose materials in violation of Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 N.Y.2d 286 (1961). The trial court refused this motion, and the Appellate Division affirmed the conviction.

Defendant asserted two errors on appeal. First, the prosecution's failure to disclose the requested FBI reports violated the rules of Brady and Rosario. Second, he did not waive his Antommarchi right to be present at a side bar discussion during jury selection, and therefore the trial court abused its discretion by refusing to conduct a reconstruction hearing.

The Brady rule requires prosecutors to provide information in their possession that is favorable and material to the defense. The Rosario rule requires prosecutors to provide the defense with statements, in its possession, made by intended prosecution witnesses. The Court of Appeals concurred with the trial court's determination that the District Attorney did not engage in a joint investigation with the FBI, and thus the District Attorney did not have access to the FBI reports requested by Defendant. The District Attorney did not have any information that he had to disclose. The Court of Appeals therefore found no Brady or Rosario violation and affirmed the decision of the Appellate Division.

The Court further concluded that Defendant waived his Antommarchi right to attend a side bar discussion during jury selection. Although the record contained no transcription of this waiver, the Court found that the trial judge's "very definite recollection" of Defendant's waiver was sufficient to show that the trial court did not abuse its discretion in refusing to grant Defendant's motion for a reconstruction hearing.

Judge Smith's dissent asserted that the trial court abused its discretion in refusing a reconstruction hearing when the trial transcript contained no record of the waiver and Defendant denied that the court informed him of his Antommarchi rights.