Opinion
September 21, 1992
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the order dated December 20, 1990, is reversed, on the law, the defendant's motion to vacate the judgment is granted, the judgment is vacated, and a new trial is ordered; and it is further,
Ordered that the appeal from the judgment is dismissed as academic, in light of the determination of the appeal from the order.
The failure of the prosecution to provide the defendant with an Early Case Assessment Bureau data sheet violated the defendant's statutory right to be provided with prior written or recorded statements made by prosecution witnesses (see, People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866; CPL 240.45). The data sheet contained notes taken by an Assistant District Attorney during an interview of the arresting officer, who had testified to the effect that he had had the defendant under observation for a period of time immediately preceding the crime. The Supreme Court concluded that the data sheet is merely the "duplicative equivalent" of other materials previously disclosed in a timely manner which contain similar statements made by the officer on other occasions (see, People v Consolazio, 40 N.Y.2d 446, 454). However, we find that the information contained in the data sheet conflicts in some respects with that contained in the previously-disclosed materials. "Two documents cannot be `duplicative equivalents' if there are variations or inconsistencies between them * * *. Further `[s]tatements are not the duplicative equivalent of previously produced statements * * * just because they are "harmonious" or "consistent" with them'" (People v Young, 79 N.Y.2d 365, 370, quoting People v Ranghelle, 69 N.Y.2d 56, 63; see also, People v Robinson, 133 A.D.2d 859, 860-861). Thus, there has been a violation of the Rosario rule which requires vacatur of the defendant's conviction (see, People v Jones, 70 N.Y.2d 547, 551; People v Consolazio, supra, at 454). Since the defendant's Rosario claim is the subject of both a direct appeal and a post-conviction motion under CPL 440.10, the per se error rule applies (see, People v Jackson, 78 N.Y.2d 638, 649; People v Novoa, 70 N.Y.2d 490).
Accordingly, the defendant's post-judgment motion is granted and a new trial is ordered (see, CPL 440.10 [f]).
In light of our determination, we need not address the defendant's remaining contention. Sullivan, J.P., Lawrence, Ritter and Santucci, JJ., concur.