Opinion
Argued March 17, 1988
Decided April 21, 1988
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Harold Baer, Jr., J.
Frederick N. Saal and Philip L. Weinstein for appellant.
Robert M. Morgenthau, District Attorney (Barbara A. Sheehan and Norman Barclay of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
At defendant's trial on charges of burglary, sodomy and related offenses, defense counsel constructed a defense around the inconsistencies between complainant's initial version to the police and her later Grand Jury and trial testimony. After the complaining witness completed her testimony, the arresting officer testified that he had interviewed the complainant in her apartment, and at the hospital a few hours after the incident, and that nothing she stated during the later interview caused him to change or add to his original memo book entry. On redirect, however, the prosecutor — knowing of the existence of a memo book entry memorializing the hospital interview but without disclosing that fact to defense counsel — elicited from the officer that the complainant had given to the police a version of the incident at the hospital substantially similar as that given in her trial testimony. Pursuing this line of inquiry on recross, defense counsel learned for the first time of the memo book entry confirming that the version given at trial was not a recent fabrication, but indeed had been given to the police only a few hours after the initial statement. With the complaining witness's credibility thus rehabilitated, defense counsel's strategy was dealt a significant blow. The People's delay in turning over the statement recorded in the hospital — revealed as it was only after defense counsel had moved forward on a strategy that depended on the statement's nonexistence — substantially prejudiced the defendant (People v Perez, 65 N.Y.2d 154, 159; see, People v Ranghelle, 69 N.Y.2d 56; People v Rosario, 9 N.Y.2d 286, 289).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order reversed, etc.