Opinion
July 29, 1974
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 15, 1973, convicting him of rape in the first degree, sexual abuse in the first degree, sexual misconduct, burglary in the second degree, petit larceny and possession of burglar's tools, after a jury trial, and sentencing him to a minimum of eight and a maximum of 25 years on the first count (rape in the first degree) and to various concurrent terms of imprisonment on all the remaining counts. The trial court's refusal to order the prosecutor to turn over his handwritten notes of conversations with witnesses constituted error. On the present record, however, we cannot determine whether that error was prejudicial. Accordingly, we are directing, on our own motion, that the District Attorney make such handwritten notes available to appellate counsel and provide this court with copies thereof, and further direct that the latter advise us by filing a supplemental brief, within 10 days after receipt thereof, of any view which he or trial counsel might have as to whether the withholding of such notes was prejudicial to appellant ( People v. Byrams, 34 A.D.2d 556, 557; see People v. Hawa, 15 A.D.2d 740, affd. 13 N.Y.2d 718). A copy of said brief is to be served upon the District Attorney, who is to serve and file a supplemental respondent's brief within 10 days thereafter. The appeal will be held in abeyance pending receipt of the above. Gulotta, P.J., Hopkins, Martuscello, Shapiro and Christ, JJ., concur.