Opinion
(IND. NOS. 1946/96 AND 3922/96)
Argued May 21, 2001
August 27, 2001.
Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County (Rosenzweig, J., at trial and sentence; Erlbaum, J., at hearing), rendered January 5, 1998, convicting him of robbery in the first degree, under Indictment No. 1946/96, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court (Latella, J.), rendered February 11, 1998, convicting him of robbery in the first degree under Indictment No. 3922/96, upon his plea of guilty, and imposing sentence. The appeal under Indictment No. 1946/96 brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Andrew C. Fine, New York, N.Y. (Michael C. Taglieri of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Kimara I. Patton of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the appeals are held in abeyance and the matter is remitted to the Supreme Court, Queens County (Erlbaum, J.), to conduct, in accordance herewith, an in camera review of the complaint follow-up reports numbered three and four in the forms relating to the "pattern" of robberies that Detective Heider withheld from among the reports two, five, and six about which he testified at the suppression hearing under Indictment No. 1946/96, and to report its findings to this court with all deliberate speed.
The record is inadequate to permit appellate review of the nature of the withheld follow-up reports. The defendant claims they may have been Rosario documents ( see, People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866). They may even constitute Brady material ( see, Brady v. Maryland, 373 U.S. 83), a claim not made by the defendant. As the court did with follow-up report numbered two, which had been redacted, the court should have reviewed in camera reports numbered three and four as well.
The Supreme Court shall conduct this in camera review and report its results with all deliberate speed. At this time we decide no other issue, including the effect, if any, of a finding that the reports, or either of them, are Rosario material ( see, CPL 240.75; People v. Sorbello, 285 A.D.2d 88 [decided herewith]; People v. Felix-Torres, 281 A.D.2d 649).
SANTUCCI, J.P., GOLDSTEIN, H. MILLER and CRANE, JJ., concur.