Opinion
June 4, 1990
Appeal from the Supreme Court, Kings County (Slavin, J.).
Ordered that the order is affirmed.
During the hearing on the defendant's CPL 440.10 motion to vacate the judgment of conviction, the prosecutor conceded that a memorandum concerning the case, which had been prepared by an Assistant District Attorney, had not been disclosed by the People at the defendant's trial. The memorandum contained a synopsis of a statement made to that Assistant District Attorney by a fire marshal who testified as an expert for the People at the defendant's trial. At the hearing, the prosecutor conceded that no duplicative equivalent of this statement had been disclosed by the People (see, People v. Consolazio, 40 N.Y.2d 446; see also, People v. Payne, 52 N.Y.2d 743). The statement generally dealt with the fire marshal's investigation of the fire that the defendant was accused of starting.
"[H]armless error analysis is inappropriate with respect to Rosario violations" (People v. Novoa, 70 N.Y.2d 490, 499; People v. Jones, 70 N.Y.2d 547; People v. Ranghelle, 69 N.Y.2d 56, 62-63; see, People v. Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, 15 N.Y.2d 765; see also, CPL 240.45). Accordingly, the Supreme Court correctly granted the defendant's motion to vacate the judgment of conviction based on the People's conceded failure to disclose the Rosario material at trial (People v. Wahad, 158 A.D.2d 312; People v. Cardona, 138 A.D.2d 617; People v. Palmer, 137 A.D.2d 881; People v. Robinson, 133 A.D.2d 859). Thompson, J.P., Kunzeman, Harwood and Miller, JJ., concur.