Similarly the Criminal Court in People v Landers ( 97 Misc.2d 274) refused to extend Rosario to a preliminary hearing since the court felt that this form of hearing was limited to whether or not the crime was committed and had no bearing on an ultimate finding of guilt. This position had been earlier adopted by the Appellate Term, First Department, in People v Epps ( 67 Misc.2d 907). However, even if the prior decisions limited Rosario to evidentiary matters, the enactment of CPL 240.44 and 240.45 Crim. Proc. would now modify such views.
The People objected. Both the prosecutor and defense counsel argued their respective points persuasively, the former, citing People v Epps ( 67 Misc.2d 907, affd 32 N.Y.2d 706) claiming that the instant proceeding is not a pretrial hearing within the meaning of CPL 240.44, but a preindictment procedure which is not covered by the statute, and that to permit discovery pursuant to CPL 240.44 would be dilatory as well as a violation of the statutory scheme of disclosure created by the Legislature which permits more extensive disclosure in direct proportion to the increase in the People's burden of proof. Defendant cited Matter of Butts v Justices of Ct. of Special Sessions ( 65 Misc.2d 536, revd on other grounds 37 A.D.2d 607, appeal dismissed 29 N.Y.2d 707) and the need for the disclosure to properly conduct a cross-examination of the complaining witness.
The examining Judge is not involved in making an ultimate finding of guilt and can exercise discretion in regulating the cross-examination of witnesses to meet the limited purpose of the hearing. This was the position taken also in People v Epps ( 67 Misc.2d 907), where the Appellate Term of the First Department sustained the refusal of the Judge presiding at the preliminary examination to continue the hearing in order to compel the arresting officer to produce his memo book, for use in the cross-examination which was then in progress. The Court of Appeals affirmed the judgment without opinion ( 32 N.Y.2d 706). The fact that the Court of Appeals did not address the issue is evidence that People v Rosario ( 9 N.Y.2d 286, supra) and People v Malinsky ( 15 N.Y.2d 86, supra) are not to be extended to preliminary hearings.
It has been urged upon this court that the Court of Appeals had in mind only constitutionally mandated suppression hearings in this exposition of the Rosario rule. Neither the quoted text, nor the policy determination it approves, is so restrictive (see People v Epps, 67 Misc.2d 907, affd 32 N.Y.2d 706). As a unanimous Appellate Division, Second Department, has stated: "Applying the rationale of People v. Rosario ( 9 N.Y.2d 286), absent the necessities of effective law enforcement which might require that the statement be kept secret or confidential, the State has no interest in interposing any obstacle to the disclosure of a prior statement by a preliminary examination witness which may expose the prosecution's case and persuade the committing magistrate to refuse to bind the accused over (see Coleman v. Alabama, 399 U.S. 1; People v. Malinsky, 15 N.Y.2d 86). " (Matter of Butts, 37 A.D.2d 607, app dsmd 29 N.Y.2d 707.)
The only issue before the court is the determination of whether the evidence produced by the People establishes reasonable cause to believe that the defendant committed a crime (CPL 180.70). ( People v. Epps, 67 Misc.2d 907; People v. Scarposi, 69 Misc.2d 264.)
" In People v. Epps ( 67 Misc.2d 907), the Appellate Term of the Supreme Court, First Department, sustained the refusal of the Judge presiding at a preliminary examination to continue a hearing in order to compel the arresting officer to produce his memo book, in aid of cross-examination then in progress. The Per Curiam opinion (one Judge dissenting) stated (p. 908): "The examining Judge expertly evaluating the weight of evidence already before him, in terms of probable cause, no doubt shrewdly recognized counsel's request as, essentially, a time-wasting tactic serving no useful purpose at that stage, yet seriously impairing the despatch of the heavy volume of criminal cases incessantly inundating the Criminal Court of the City of New York.