Opinion
December 1, 1998
Appeal from the Supreme Court, New York County (Colleen McMahon, J.).
Where defendant's Rosario claim is adjudicated pursuant to a post-judgment CPL 440.10 motion, even one brought before his direct appeal is exhausted, it is error to apply a "per se" rule ( People v. Machado, 90 N.Y.2d 187; see, People v. Cohen, 242 A.D.2d 473, lv denied 91 N.Y.2d 871; People v. Kronberg, 243 A.D.2d 132, lv denied 92 N.Y.2d 880; People v. Oliviery-Perez, 248 A.D.2d 645, lv denied 91 N.Y.2d 1011). Rather, defendant was required to demonstrate "a reasonable possibility that the prosecution's failure to make Rosario disclosure materially contributed to the verdict" ( People v. Machado, 90 N.Y.2d supra, at 188-189). Application of this standard to the court's explicit factual finding that defendant suffered no prejudice mandates reversal of the order and reinstatement of the conviction.
Concur — Milonas, J. P., Ellerin, Rubin, Tom and Saxe, JJ.