Opinion
2015-12375, Ind. No. 5707/13.
07-05-2017
The PEOPLE, etc., appellant, v. Eddy GUILLAUME, respondent.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Slevin of counsel), for appellant. Seymour W. James, Jr., New York, NY (Ronald Alfano of counsel), for respondent.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Slevin of counsel), for appellant.
Seymour W. James, Jr., New York, NY (Ronald Alfano of counsel), for respondent.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LaSALLE, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the People from so much of an order of the Supreme Court, Kings County (Simpson, J.), dated November 10, 2015, as, upon granting an oral application by the defendant for a mistrial, dismissed the indictment.
ORDERED that the order is reversed insofar as appealed from, on the law, the indictment is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment.
The defendant was indicted for criminal sexual act in the first degree, sexual abuse in the first degree, sexual abuse in the second degree, sexual misconduct, and endangering the welfare of a child, based on his alleged sexual abuse of a four-year-old child. After summations at a nonjury trial, where the mother of the four-year-old child testified for the prosecution, the prosecutor revealed that she had just received a report from the Office of Children and Family Services relating the statement of a social worker as to what the mother allegedly told her. The report stated that the mother told the social worker that she herself was sexually abused as a child. Concluding that the information was relevant to the mother's credibility and could have been used by the defense for impeachment purposes, the Supreme Court granted the defendant's oral application for a mistrial, and dismissed the indictment.
The subject statement was not a written or recorded statement of the mother, but, rather, was the statement of an unidentified person as to what the mother allegedly said. Therefore, the statement was not Rosario material (see CPL 240.45[1][a] ; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 ; Matter of Catterson v. Rohl, 202 A.D.2d 420, 423, 608 N.Y.S.2d 696 ; People v. Williams, 165 A.D.2d 839, 840–841, 560 N.Y.S.2d 220, affd. 78 N.Y.2d 1087, 578 N.Y.S.2d 870, 586 N.E.2d 53 ). In any event, even if there were a Rosario violation, the appropriate remedy was a new trial, not dismissal of the indictment (see People v. Ranghelle, 69 N.Y.2d 56, 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011 ; People v. Garrett, 177 A.D.2d 1, 3, 580 N.Y.S.2d 42 ).
The defendant's remaining contention is without merit.
Accordingly, the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment (see People v. Alonso, 91 A.D.3d 663, 666, 936 N.Y.S.2d 250 ).