People v. Jennings

217 A.D.2d 433, 629 N.Y.S.2d 421, 1995 N.Y. App. Div. LEXIS 7736

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1995
• Status: Published

Opinion

Appeal from judgment, Supreme Court, Bronx County (Fred Eggert, J.), rendered September 21, 1992, convicting defendant, after a plea of guilty, of criminal possession of a weapon in the third degree, criminal possession of a weapon in the fourth degree, criminal possession of a controlled substance in the fifth degree, criminal possession of marijuana in the fifth degree, and unlawful possession of marijuana, and sentencing him to concurrent terms of 5 years probation on each count, unanimously held in abeyance, and the matter remanded for a de novo suppression hearing.

Defense counsel was denied Rosario material consisting of a witness’ Grand Jury testimony and a pre-arraignment interview to which defendant was entitled (People v Rosario, 9 NY2d 286, 289-290). The trial court’s review of the missing Rosario materials was an inadequate substitute for defense counsel’s use thereof under the notions of "fundamental fairness” (People v Banch, 80 NY2d 610, 615). Thus, the court’s refusal to reopen the suppression hearing was erroneous and as defendant was prejudiced, a de novo hearing is required (supra, at 619). Concur—Sullivan, J. P., Rosenberger, Ellerin, Asch and Nardelli, JJ.