People v. Lugo

153 A.D.2d 761, 544 N.Y.S.2d 985, 1989 N.Y. App. Div. LEXIS 11229

Opinion

Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Dowd, J.), rendered March 6, 1981, convicting him of murder in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence, and (2), by permission, from (a) an order of the same court, dated October 10, 1984, which, after a hearing, denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground, inter alia, of the alleged withholding of Brady material, and (b) an order of the same court, dated February 13, 1987, which denied, without a hearing, his second motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of the alleged withholding of Rosario material.

Ordered that the order dated February 13, 1987, is reversed, on the law and the facts, the defendant’s motion to vacate the judgment of conviction is granted, and a new trial is ordered. The appeals from the judgment and from the order dated October 10, 1984, are dismissed as academic.

The prosecution’s violation of the Rosario rule (see, People v Rosario, 9 NY2d 286, cert denied 368 US 866; CPL 240.45) requires reversal of the defendant’s conviction (see, People v Cardona, 138 AD2d 617).

In view of our determination, we do not address the defendant’s remaining contentions. Kooper, J. P., Spatt, Harwood and Rosenblatt, JJ., concur.