Opinion
Argued October 9, 1991
Decided December 19, 1991
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Peter J. McQuillan, J.
Robert M. Morgenthau, District Attorney (Patrick J. Hynes, James M. Kindler, Mark Dwyer and Eleanor J. Ostrow of counsel), for appellant.
Robert Bloom, Robert J. Boyle and Elizabeth M. Fink for respondent.
Ira Mickenberg for Office of the Appellate Defender, amicus curiae. Joan P. Gibbs for Center for Constitutional Rights and others, 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 19 years ago, the defendant Dhoruba Bin Wahad was convicted of two counts of attempted murder (Penal Law § 110.00, former § 125.25) and one count of felonious possession of a weapon (Penal Law former § 265.05) in connection with a 1971 machine gun shooting of two police officers. Defendant's conviction was affirmed by the Appellate Division ( 51 A.D.2d 891) and by this Court ( 42 N.Y.2d 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 N.Y.2d 286, cert denied 368 U.S. 866).
For the reasons stated in our opinion in People v Jackson ( 78 N.Y.2d 638 [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.
Chief Judge WACHTLER and Judges SIMONS, KAYE and BELLACOSA concur in memorandum; Judge TITONE dissents and votes to affirm in an opinion in which Judges ALEXANDER and HANCOCK, JR., concur.
Order reversed, etc.
For the reasons stated in my dissenting opinion in People v Jackson ( 78 N.Y.2d 638 [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 N.Y.2d 547) should also be applied in this CPL 440.10 proceeding. Accordingly, the order below should be affirmed.