Summary
In People v Nelu (157 AD2d 864 [2d Dept 1990]), the Court noted that an alibi "notice does not contain any prior statements of the defendant or his alibi witness, and is merely a document prepared by the defense attorney pursuant to statute."
Summary of this case from People v. TaylorOpinion
January 29, 1990
Appeal from the Supreme Court, Queens County (Gallagher, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered. No questions of fact have been raised or considered.
We agree with the defendant that the People's failure to turn over their "Data Analysis Form" constitutes a violation of the Rosario rule and requires that a new trial be held (see, People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866; People v. Pringle, 154 A.D.2d 410). Contrary to the People's contentions, this worksheet does not fall under the work product exemption (see, People v. Smith, 150 A.D.2d 275; CPL 240.10) and its "duplicative equivalent" was not otherwise supplied to the defense (see, People v. Ranghelle, 69 N.Y.2d 56; People v Consolazio, 40 N.Y.2d 446; People v. Ray, 140 A.D.2d 380). Upon review of the worksheet, we find that it does not merely set forth the factual details of the crime but also attributes several statements to the People's witnesses (see, People v Smith, supra; People v. Wright, 135 A.D.2d 594; cf., People v Adger, 144 A.D.2d 475; People v. Mills, 142 A.D.2d 653).
We note that upon remittitur, the People shall be precluded from using the defendant's notice of alibi to impeach him or his alibi witness, as the prosecutor did at the first trial. The notice does not contain any prior statements of the defendant or his alibi witness, and is merely a document prepared by the defense attorney pursuant to statute (see, CPL 250.20; People v. Carroll, 117 A.D.2d 815; People v. Tramontano, 65 A.D.2d 762). Furthermore, the prosecutor's cross-examination of the defendant as to the alibi information he conveyed to his counsel constituted a violation of the defendant's attorney-client privilege (see, People v. Wilkins, 65 N.Y.2d 172; People v Glenn, 52 N.Y.2d 880). We also note with disapproval those remarks made by the prosecutor in her summation which concerned the notice of alibi.
Furthermore, we find error in the exclusion by the court of evidence concerning the defendant's alleged past relationship with the complaining witness. The ruling denied the defendant his right to present proof of the complaining witness's motivation to fabricate the charges she made against him (see, People v. Hudy, 73 N.Y.2d 40; Richardson, Evidence § 503 [Prince 10th ed]).
In view of our determination, we do not pass upon the defendant's remaining contentions. Mollen, P.J., Mangano, Kunzeman and Kooper, JJ., concur.