Opinion
Submitted March 24, 1976
Decided April 27, 1976
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, RICHARD J. SHAY, J.
Donald L. Slater for appellant.
Robert E. Jones, District Attorney (Robert T. Jewett of counsel), for respondent.
MEMORANDUM. The order of the Appellate Division should be reversed and a new trial ordered.
It was error for the trial court to deny defense counsel's request to inspect, for possible use on cross-examination, the written notes and reports made by the several police officers in the course of their investigation (People v Persico, 24 N.Y.2d 758; People v Malinsky, 15 N.Y.2d 86, 90-91; People v Rosario, 9 N.Y.2d 286; see Jencks v United States, 353 U.S. 657; cf. CPL art 240). Reliance on the in camera finding that the material had "nothing in it exculpatory to the defendant" was not in accord with our explicit holding in Malinsky (supra, pp 90-91) that a trial court "may not allow the People to keep from the defendants' counsel statements or notes made by a witness upon the ground that nothing in them could assist the defense or that no prejudice would result from withholding them". Since the request was made during trial, the CPL (art 240) provisions on pretrial disclosure did not apply (Pitler, New York Criminal Practice Under the CPL, § 10.13, p 474; cf. People v Hawa, 15 A.D.2d 740, affd 13 N.Y.2d 718).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order reversed, etc.