Opinion
December 29, 1992
Appeal from the Supreme Court, New York County (Budd G. Goodman, J.).
In vacating the judgment of conviction, which this Court had previously affirmed ( 81 A.D.2d 1045, lv denied 54 N.Y.2d 685), based on defendant's claim of a Rosario violation, the trial court applied an erroneous standard, that is, that the People's failure to turn over the material in question at trial was not subject to harmless error analysis. As the Court of Appeals has now held, a defendant who has exhausted his direct appeal and raises a Rosario claim by a CPL 440.10 motion is required to make an actual showing of prejudice as a result of the People's failure to turn over the Rosario material (People v Bin Wahad, 79 N.Y.2d 787). Thus, it was error to apply an error per se standard in deciding defendant's CPL 440.10 motion. We remand for a hearing.
Concur — Sullivan, J.P., Carro, Rosenberger and Rubin, JJ.