People v. ConsolazioPeople v. Consolazio
On this appeal, we agree with defendant that under principles of double jeopardy as enunciated by the United States Supreme Court the People were barred from appealing to the Appellate Division from the trial order dismissing certain counts of defendant’s indictment. We reject, however, defendant’s contentions that because his challenge to the jury panel was denied and because he was denied disclosure of prosecution nоtes of pretrial witness interrogations, reversible error was committed with respect to those counts on which he was found guilty.
During the years 1968 to 1971, appellant, an attorney, approached numerous individuals in his community with proposаls that they invest in various schemes yeilding quick, high interest returns. Many of these people, who had known appellant as an attorney, friend, customer, neighbor or employee, gave him money; no significant portion of any of the "investеd” funds was ever returned. In consequence appellant was indicted on 57 counts, 44 for grand larceny in the second degree and 13 for grand larceny in the third degree. At trial in Nassau County Court one count was severed; 50 counts were dismissed аt the conclusion of the People’s case, nine with the consent of the prosecutor; and appellant was convicted on the remaining six counts. Cross appeals were taken to the Appellate Division. On aрpellant’s appeal the six convictions were affirmed. On the People’s appeal the Appellate Division reinstated 39 of the 41 counts which had been dismissed over the People’s objection, and the dismissal of the оther two counts was affirmed.
We first deal with the appeal taken to the Appellate Division by the People from the trial order of dismissal. Under our decision in People v Brown (
As to the six counts on which the jury returned a verdict of guilty, appellant advances several contentions that errors committed during his trial require reversal of his convictions thereon. We conclude that none of such contentions is of sufficiеnt substance to warrant reversal; some, however, merit brief attention.
It is first contended that the prosecutor’s failure to turn over certain "worksheets” compiled in preparation for trial and the trial court’s acquiescence in such refusal constituted reversible error. These worksheets were in the form of unsigned questionnaires containing printed questions (e.g., "When did you first meet Mr. Consolazio?” "Who introduced you to him?” and "How did it come about that you invested with him?”) and handwritten notes made by the interviewing officer that capsulized the witnesses’ answers thereto. During trial defense counsel requested that the prosecution turn over (a) all exculpatory material as required under Brady v Maryland (
At the Appellate Division that court itself examined the worksheets and concluded that "even assuming that they should have bеen made available to [the defense], no prejudice
With respect to the Brady aspect of appellant’s argument, we agree that it was error for that court not itsеlf to have examined the worksheets to determine whether, as claimed by the defense, such worksheets contained exculpatory material. While a prosecutor must of necessity "have some discretion in determining which evidence must be turned over to the defense” (People v Fein,
With respect to the Rosario branch of defendant’s argument, we hold that the trial court erroneously concluded that the worksheets did not constitute "prior statements” of prosecution witnesses within the contemplation of the rule of that case. The character of a statement is not to be determined by the manner in which it is recorded, nor is it changed by the presence or absence of a signature. Thus it has been held that a witness’ statement in narrative fоrm made in preparation for trial by an Assistant District Attorney in his own hand is "a record of a prior statement by a witness within the compass of the rule in People v. Rosario * * * and therefore not exempt from disclosure as a 'work product’ datum of the prosecutor”. (People v Hawa,
Turning then to whether the withholding of such worksheets must here result in the setting aside of defendant’s conviction, we conclude not in the circumstances of this case. We hold, of course, that a failure to turn over Rosario material may not be exсused on the ground that such material would have been of limited or of no use to the defense, or that a witness’ prior statements were totally consistent with his testimony at trial. (People v Malinsky,
The present case, however, presents a significantly different issue. Our examination of the Grand Jury testimony of the various prosecutiоn witnesses (which testimony was turned over by the prosecutor to the defense) reveals that the witnesses’ statements contained in the worksheets were the same as the statements made by such witnesses before the Grand Jury. The worksheets in this instаnce were nothing more than duplicative equivalents of statements previously turned over to the defense—the only difference being as to the particular form in which such statements were recorded. In this circumstance it was nоt error to fail to turn over worksheets which would have been cumulative only. (Compare People v Kass,
In reaching the conclusion that we do in this case we make a supplemental observation. When Rosario material is requested by a defendant, in thе ordinary situation it should be of negligible practical significance whether on comparative
We do not reach appellant’s challenge to the jury panel. It is explicitly provided in CPL 270.10 (subd 2) that such a challenge must be made "in writing” and "before the sеlection of the jury commences, and, if it is not, such challenge is deemed to be waived”. In this instance while a motion to challenge the jury panel was made orally before jury selection began (and then rejected) the written notice was not given until after selection of the jury had been completed although before any witness had been sworn. In this circumstance, irrespective of the willingness of the trial court to consider the motion on the merits, the error if any in the denial of the motion was not preserved for our review. We accord no substance to appellant’s further contention that his challenge was predicated on constitutional grounds and that the strictures of CPL 270.10 (subd 1) aрply only to challenges based on "departure from the requirements of the judiciary law”. We read CPL 270.10 (subd 2) as intended by the Legislature to govern all challenges to the panel, whatever may be the particular ground advanced.
As to appellant’s other contentions, it suffices to note that in our opinion the refusal of the trial court to charge explicitly with reference to "reliance” as an essential element of larceny by false promise was not error in view of the verbatim, quotation of the applicable sections of the Penal Law in full. Similarly, in consequence of the failure of defense counsel to register a protest, any error with respect to the right оf the jury to consider evidence presented to support the dismissed counts was not preserved for our review.
Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Cooke concur.
Order modified and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.
Notes
To be distinguished are those appeals from pre-Rosario convictions as to which this court applied a harmless error analysis where violations of the Rosario rule were found. (See, e.g., People v Rosario,