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.
] | [ISSUE & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
In a criminal case in which defendant was convicted of kidnapping and felony
assault, the prosecution failed to turn over Rosario
this nondisclosure never became part of the record at trial, the Appellate
Division refused to rule on the alleged Rosario
while the direct appeal was pending, defendant filed a CPL
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
motions, reversed and vacated the convictions.
ISSUE & DISPOSITION
Whether a prejudice standard applies to Rosario
motions before exhaustion of defendant's direct appeal.
Yes. A prejudice standard should apply to all pre-appeal Rosario
violations raised by CPL
Cases Cited by the Court
Banch, 80 N.Y.2d 610 (N.Y. 1992).
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
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
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
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
court, having to rule upon a post-appeal CPL
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
motion prior to a ruling on his direct appeal. Defendant claims that the
same concerns for finality of judgments do not exist here.
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.
Yet to be seen is the legislature's reaction to Machado
The legislature could very easily eradicate any anomaly in the language
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
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)
withheld by the prosecution was not found to be material to the issue of
Micah A. Acoba, '99
Andrew F. Fowler, '98
Scott R. Goldsmith, '99
Benita Lee, '99
Karen E. Pawlick, '99
Jason A. Shrensky, '98