Opinion
September 18, 1995
Appeal from the Supreme Court, Kings County, Bianchi, J., Jones, J.
Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on the issues of whether certain documents referred to at the trial exist, and if they do, whether the defendant is entitled to them under People v Rosario ( 9 N.Y.2d 286), and the appeal is held in abeyance in the interim. The Supreme Court shall file its report with this Court with all convenient speed.
Contrary to the People's contention, the defendant's claim that he was improperly denied access to certain Rosario material is preserved for appellate review (see, People v Campbell, 186 A.D.2d 212). Moreover, the Supreme Court erred in summarily denying defense counsel's request for that material. Specifically, defense counsel requested any existing police reports allegedly containing statements by the complainant, the defendant's wife, concerning prior altercations between her and the defendant. However, although the complainant testified as to the prior altercations and described them, the court improperly found that the requested documents did not constitute Rosario material without first examining them (see, People v James, 193 A.D.2d 694; People v Gallardo, 173 A.D.2d 636). Copertino, J.P., Santucci, Altman and Friedmann, JJ., concur.