People v. Callendar

227 A.D.2d 499, 643 N.Y.S.2d 142, 1996 N.Y. App. Div. LEXIS 5060

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1996
• Status: Published

Opinion

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Aiello, J.), dated July 13, 1994, which denied, after a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court, rendered October 4, 1989, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the order is reversed, on the law, the defendant’s motion to vacate the judgment is granted, the judgment is vacated, and a new trial is ordered.

We agree with the defendant that the court erred in ruling that the notes of the Assistant District Attorney did not constitute Rosario material as to a detective’s testimony at trial. The entry in the notes of the Assistant District Attorney related to the subject matter of the detective’s trial testimony. In addition, the information contained in the notes of the Assistant District Attorney cannot be considered a duplicative equivalent of other disclosed materials. Accordingly, since the defendant’s direct appeal had not been exhausted when he made his CPL 440.10 motion, the per se error rule is applicable, and the judgment of conviction must be vacated (see, People v Rosario, 9 NY2d 286; People v Ranghelle, 69 NY2d 56; People v Young, 79 NY2d 365; People v Jackson, 78 NY2d 638).

The defendant’s remaining contentions are without merit. Thompson, J. P., Hart, Goldstein and McGinity, JJ., concur.