People v. Jennings

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

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.