Opinion
2013-01-4
The PEOPLE of the State of New York v. Patricia E. HERRERA, Defendant.
Christopher X. Maher, Esq., Carmel NY. Trooper Commerford, NYSP, Salt Point NY.
Christopher X. Maher, Esq., Carmel NY. Trooper Commerford, NYSP, Salt Point NY.
DAVID A. SEARS, J.
A Trial was conducted on November 26, 2012, wherein the Defendant was charged by Information with Disorderly Conduct, a Violation of § 240.20 of the Penal Law. Prior to Trial, Defendant's counsel served the People with Demands to Produce pursuant to § 240.20 of the Criminal Procedure Law. The People did not respond to those demands at any time prior to the commencement of Trial. Furthermore, no “Rosario” material was presented to the Defendant prior to commencement of the Trial.
The allegation against the Defendant assert that on July 16, 2012, she was guilty of Disorderly Conduct, when, with the intent to cause public inconvenience or alarm or recklessly creating a risk thereof in a public place, used abusive or obscene language. The specific allegation set forth in the information and testimony at Trial leave no question that the language used in a public place, if true, was indeed abusive or obscene.
At the Trial, the People called two witnesses. The first witness was Tanya Lynn A. Lindh. She testified about the events of July 16, 2012, including what she heard the Defendant say. On cross examination it was learned that while she was being interviewed by the State Police Trooper Commerford, the Trooper took notes on a “small book”. It was further learned in the cross examination of Tanya Lynn A. Lindh, that Trooper Commerford also interviewed her brother, Joseph Martin on July 16, 2012, and may have kept notes regarding an interview with Joseph Martin. (Although, in the testimony of Joseph Martin, he denies having been interviewed by Trooper Commerford). The case was prosecuted by Trooper Commerford, who advised the Court that he in fact did have some notes, but the same were left at the State Police Barracks, and not provided to the Defendant or her attorney.
The People's case is based on the testimony of two (2) witnesses, Ms. Lindh and Mr. Martin. Defendant's counsel objected to the testimony asserting violations of Article 240.00 of the Criminal Procedure Law and accompanying “Rosario” violations. Neither the People or the Defendant sought to adjourn the Trial, but rather after two (2) witnesses completed their testimonies, the People rested. The Defendant offered no witnesses, but requested an opportunity to submit argument concerning the appropriate remedy for the perceived violation of the Criminal Procedure Law and People v.. Rosario.
It is the opinion of the Court that the Defendant properly made a request, prior to Trial, for statements attributed for the Defendant and further demands production of written and/or recorded statements of the witnesses intended to be called at Trial. Further, it is required the Prosecutor make available to the Defendant any written or recorded statements by a person whom the Prosecutor intends to call as a witness at Trial. See, CPL § 240.45, see also, People v. Rosario. 9 N.Y.2d 286 (1961). The People failed to fulfill the requirements of disclosure by failing to turn over Trooper Commerford's notes prior to Trial. Failure to timely disclose the statements of witnesses Lindh and Martin is grounds for a sanction only where the Defendant shows there is a reasonable possibility that the non-disclosure would materially contribute to the result of the Trial. CPL § 240.75, see also, People v. Williams 50 AD3d 1177 (3d Dept 2008). However, where the evidence is not disclosed until after Trial begins, no sanction is required so long as the Defendant was offered a meaningful opportunity to use it to cross examine the People's witnesses. Here, it was learned significant Rosario's material exists, yet the People did not disclose the same but rather rested their case over the objection of the Defendant's counsel.
Because this case involves witness testimony against the Defendant, specifically related to what the Defendant said, it is quite likely the Defendant could show that there was a reasonable possibility that disclosure would contribute to the result of the Trial. It is clear that whatever the content of the Trooper's notes, the Defendant was entitled to see the same and be afforded a meaningful opportunity to use the same in cross examination of The People's witnesses.
Based on the foregoing, the Court declares a Mistrial. The People will notify the Court and Defendant within thirty (30) days whether they will proceed with a retrial.