The People of the State of New York, Respondent, v Malik A. Mosby, Appellant.
Supreme Court, Appellate Division, Third Department, New York
(January 14, 2010)
[894 NYS2d 534]
Defendant argues that he was denied the effective assistance of counsel, that the People committed Rosario and Brady violations, that he was denied the right to a public trial and that he was improperly sentenced as a second felony offender. We find that there are unanswered questions regarding whether the People failed to disclose Rosario material—specifically evidence regarding conversations between undercover officers who testified at trial and defendant during a prior drug transaction between defendant and the officers that was alleged to have occurred on July 27, 2005, two weeks before the sales that were the subject of the indictment—and that, until there has been such disclosure and defendant has had an opportunity to establish that these materials should have been made available to him at trial, we cannot pass on the merits of the issues raised in this appeal.
The facts are not complicated or in dispute. As the result of information received from a confidential informant, defendant became a target of a drug investigation being conducted by the Special Investigations Unit of the Ithaca Police Department, as well as the State Police Community Narcotics Enforcement Team. A police officer working in an undercover capacity was introduced to defendant by the informant on the afternoon of July 27, 2005 and, at that time, purchased from him a fentanyl transdermal patch and 11 pills containing oxycodone for $140. The officer also discussed making other buys from defendant and made arrangements by which she would contact him in the
Prior to trial, defendant made a timely demand for, among other things, all Rosario material and, in that regard, was provided with statements and recordings made by the People‘s trial witnesses in connection with the drug transactions charged in the indictment. However, he was not provided with any material regarding the July 27, 2005 transaction, even though the undercover officer who made that buy and a police officer who surveilled that transaction testified at his trial. When defendant subsequently uncovered information regarding this sale and its relation to the charges contained in the indictment, he moved to set aside his conviction pursuant to
In any criminal prosecution, the People are required to “make available to the defendant . . . [a]ny written or recorded statement . . . made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness‘s testimony” (
The obligation imposed by Rosario is not so limited or so strictly defined. In that regard, we refer to People v. Baghai-Kermani (84 NY2d 525 [1994]) where, under strikingly similar circumstances, tape recordings compiled during a criminal investigation were deemed to constitute Rosario material and convictions were reversed due to the People‘s failure to disclose them when the witness who made them testified at trial (id. at 530-531). In that case, undercover police officers purchased prescriptions for controlled substances from the defendant at his medical office and testified to the details of each transaction at trial (id. at 528-529). After the defendant was convicted of 10 separate counts in regard to the illegal sale of these prescriptions, it was learned that one of the investigators had made tape recordings that bore on his relationship with the defendant and had not been disclosed at trial (id. at 529). One of the tape recordings was made when the investigator went to the defendant‘s office to buy a prescription, but was turned away without seeing the defendant because the office had run out of prescription forms (id. at 529-530). The investigator did not testify to this trip to the defendant‘s office, and nothing contained in the
Here, the connection between the undisclosed tape recording and the issues raised at trial is even more compelling. For example, we now know that the July 27, 2005 sale was the first direct contact that any police officer had with defendant during this investigation and that, during this encounter, future sales of illegal drugs were discussed. It involved the same principals discussing the same illegal subject matter and occurred only a short time before the crimes charged in the indictment were committed. In addition, this transaction served to define the parameters of the undercover officer‘s future relationship with defendant and undoubtedly facilitated the sales of illegal drugs of which defendant now stands convicted. Given these facts—none of which are in dispute—the importance of this first transaction and its relevance to the entire investigation of defendant can hardly be overstated. For that reason, the tape recording and any other materials that document the undercover officer‘s conversation with defendant should be fully disclosed and a more thorough inquiry of their contents should be conducted before any decision is made as to whether it was reversible error not to turn them over to defendant when these witnesses testified at trial. To simply reply upon an affidavit of a police officer, who did not participate in this transaction and had no contact with defendant prior to his arrest, for the proposition that these materials had no relevance to this proceeding in the face of uncontroverted proof to the contrary does not accord this defendant with any fair measure of due process (see People v. Brome, 278 AD2d at 748; see generally People v. Williams, 50 AD3d 1177 [2008]).
It may not have been in defendant‘s interest, given the illegal activity involved, to have any of these materials disclosed at his trial, and it is questionable whether he will be able to establish that, if there had been timely disclosure of these materials, a
Malone Jr. and McCarthy, JJ., concur.
Mercure, J.P. (dissenting). As the evidence of the uncharged July 2005 drug sale is not Rosario material and, regardless, could not have created a reasonable possibility of a different result at trial, we respectfully dissent.
Evidence constituting Rosario material is “[a]ny written or recorded statement . . . made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness‘s testimony” (
Notwithstanding the plain language of
Another critical factor overlooked by the majority is that the cases they rely upon were handed down prior to the enactment of
Defendant offered no credible suggestion as to how the absent evidence of the prior sale could have created such a “reasonable possibility.” We have far more than a naked assurance that evi-
For all the bluster regarding the undisclosed documents, neither the majority nor defendant—who, as a participant in the July 2005 sale, is in a good position to state what transpired during it that would have aided him at trial—provide anything beyond speculation as to how evidence of the prior sale could have assisted defendant‘s agency defense. Indeed, the majority confesses skepticism as to whether defendant would have been aided by revelations at trial regarding uncharged drug sales. Nevertheless, the majority remits this matter to County Court for proceedings which are, in our view, unnecessary. As County Court is not obliged to assist defendant in “an unrestrained ‘tour of investigation seeking generally useful information’ ” that lies outside the bounds of the Rosario rule, we would reject defendant‘s Rosario argument and address his remaining claims of error (People v. Poole, 48 NY2d 144, 148 [1979], quoting People v. Rosario, 9 NY2d at 290).
Spain, J., concurs. Ordered that the decision is withheld, and matter remitted to the County Court of Tompkins County for further proceedings not inconsistent with this Court‘s decision.