In light of the afore-mentioned newly enacted law, however, a hearing should be conducted prior to the fact-finding hearing, in order to determine whether the gun was properly seized and whether it should be suppressed as evidence. ΒΆ We additionally note that the court erred in summarily denying appellant's request to direct the prosecution to turn over, for the purpose of cross-examination, the transcript of the arresting officer's testimony before a Grand Jury concerning the person arrested with appellant (CPL 240.45; People v Rosario, 9 N.Y.2d 286, cert. den. 368 U.S. 866). The court should inspect the officer's Grand Jury testimony in camera and relinquish to appellant any material found not to be cumulative or irrelevant ( People v Poole, 48 N.Y.2d 144; People v Walton, 89 A.D.2d 611). Titone, J.P., Mangano, Thompson and Eiber, JJ., concur.
Defendant's appellate counsel also raises doubts on this score. To determine whether they are the same, it is necessary to remit this case to the Judge who presided at the suppression hearing, so that he may examine the "notes and forms" provided this court. If the latter documents are the same as were reviewed at the suppression hearing, Criminal Term should compare them with the arresting officer's Grand Jury testimony and report on whether the notes are "nothing more than [a] duplicative equivalent" of the Grand Jury testimony (see People v Consolazio, supra, p 454; People v Walton, 89 A.D.2d 611). If the "notes and forms" differ from those which were examined at the suppression hearing, or if there be doubt in this regard, Criminal Term should so report. Furthermore, in such event, Criminal Term should, if able, reconstruct the original notes on the basis of its prior in camera review. Gibbons, J.P., Bracken, Brown and Niehoff, JJ., concur.
Appeal by defendant from a judgment of the Supreme Court, Kings County (Booth, J.), rendered August 7, 1980, convicting him of sexual abuse in the first degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. Judgment affirmed. By order of this court, dated July 19, 1982 ( People v Walton, 89 A.D.2d 611), this matter was remitted to Criminal Term for a hearing on whether a four-page summary of an interview between the complainant and an Assistant District Attorney, which was not turned over to the defense as Rosario material (see People v Rosario, 9 N.Y.2d 286, cert den 368 U.S. 866), was a duplicative equivalent of the complainant's Grand Jury testimony. Criminal Term, after comparing the two, found that the summary was indeed duplicative of the complainant's testimony before the Grand Jury. After an independent comparison of the two transcriptions of the complainant's statements we have concluded that Criminal Term's finding is correct.