People v. Dawson

157 A.D.2d 606, 550 N.Y.S.2d 625, 1990 N.Y. App. Div. LEXIS 817

Opinion

Appeal from judgment of the Supreme Court, New York County (James Leff, J.), rendered on or about November 12, 1987, which convicted defendant, after a jury trial, of two counts of robbery in the first degree, one count of robbery in the second degree, and one count of criminal possession of a weapon in the third degree and sentenced him as a second violent felony offender to three concurrent terms of 6 to 12 years on the robbery counts and to a concurrent 3Vi-to-7-year term on the weapons count, held in abeyance pending determination of a hearing pursuant to CPL 440.10 to determine whether all Rosario material was properly produced and the proceeding is remanded for that purpose.

The Rosario issue raised on this appeal is whether a ballistics examination request form, involving a handgun allegedly discarded by defendant while the police were in hot pursuit, was furnished to the defense prior to the cross-examination of the arresting officer whose statement was allegedly contained in the ballistics form. Because the record is not clear as to whether the form was produced, a hearing is necessary on this limited issue.

At trial the prosecutor stated that he had no knowledge as to the existence of the ballistics form. Therefore, the People did not waive their right, as appellant contends, to challenge the request on the ground that the form was duplicative of other materials produced. (See, People v Quinones, 139 AD2d 404, 407.) Concur—Murphy, P. J., Ross, Milonas, Kassal and Rubin, JJ.