Opinion
1999-07874
Argued March 22, 2002.
August 26, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered July 28, 1999, convicting him of murder in the first degree (two counts), murder in the second degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities.
Lynn W. L. Fahey, New York, N.Y. (Jay L. Weiner of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Nicoletta J. Caferri of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
ORDERED that the judgment is reversed, on the law and the facts, and a new trial is ordered.
The Supreme Court erred in denying the defendant's post verdict motion pursuant to CPL 330.30 to set aside his conviction based on purported Rosario and Brady violations (see People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866; Brady v. Maryland, 373 U.S. 83). The defendant argued that the Queens County District Attorney's Office improperly failed to provide him with material it possessed concerning statements made by the victims' son.
Pursuant to People v. Rosario (supra), the prosecution is required to turn over any pretrial statements made by a prosecution witness relating to the subject matter of the witness's testimony. We agree with the defendant that certain statements attributable to the victims' son contained in a memorandum to the District Attorney himself fall within the purview of Rosario. The statements may directly relate to the declarant's identification of the defendant, and the prosecutor's failure to disclose the statements reasonably could have affected the verdict (see CPL 240.75; cf. People v. Sorbello, 285 A.D.2d 88, lv denied 97 N.Y.2d 658) . Accordingly, the defendant's CPL 330.30 motion should have been granted.
Since we are ordering a new trial, we note that the defendant's contention that the Supreme Court erred in denying that branch of his omnibus motion which was to suppress his statements to law enforcement authorities is without merit.
In light of our determination, we need not reach the defendant's remaining contention.
ALTMAN, J.P., McGINITY, TOWNES and CRANE, JJ., concur.