Opinion
April 25, 1991
Appeal from the Supreme Court, New York County (Peter McQuillan, J.).
This case, arising out of a defendant's participation in the shooting of two police officers on May 19, 1971, has occasioned substantial litigation. After the judgment was affirmed in the courts of this state, the Supreme Court of the United States denied certiorari ( 51 A.D.2d 891, affd 42 N.Y.2d 421, cert denied 434 U.S. 987). During the later 1970's, defendant commenced a civil rights suit in federal court for the Southern District of New York against the Federal Bureau of Investigation, the New York City Police Department, and other parties. As a result, substantial documentation was disclosed to defendant. Certain of these documents relate to the shootings for which defendant was convicted. On April 18, 1988, defendant moved in New York County Supreme Court, pursuant to CPL 440.10 to vacate the judgment, alleging that certain of these documents were undisclosed Rosario materials. The motion court denied the motion under constraint of People v. Howard ( 127 A.D.2d 109) on the basis that defendant had raised these issues in a collateral proceeding, rather than by direct appeal from judgment.
This court (Joseph P. Sullivan, J.) granted leave on March 18, 1989. We reversed to the extent of determining that People v Howard (supra) would not require denial of defendant's motion. We remanded for consideration of whether the purported Rosario materials were the duplicative equivalents of materials made available to defendant during trial ( 158 A.D.2d 312). The Court of Appeals denied leave to the People ( 75 N.Y.2d 968 [Fritz W. Alexander, II, J.]).
Subsequently, the People conceded that certain of the undisclosed materials were not duplicative equivalents. On this basis, the motion court vacated the judgment on the authority of People v. Ranghelle ( 69 N.Y.2d 56), which found nondisclosure of Rosario materials to constitute per se reversible error. The People presently appeal that order.
Although we note that the People maintain that the subject materials were neither material nor prejudicial, the rulings in People v. Novoa ( 70 N.Y.2d 490), and People v. Jones ( 70 N.Y.2d 547), clearly remove any consideration of materiality or prejudice from our review. Since vacatur of judgment is mandated, we need not reach defendant's remaining contentions.
Concur — Kupferman, J.P., Sullivan, Carro, Smith and Rubin, JJ.