People v. Napierala

90 A.D.2d 689, 455 N.Y.S.2d 862, 1982 N.Y. App. Div. LEXIS 18782

Opinion

Judgment unanimously reversed, on the law and facts, and a new trial granted. Memorandum: In this arson case, defense counsel neglected to turn over to the prosecution a report prepared by his expert witness until after the witness had taken the stand to testify. As a consequence, the trial court precluded the witness from testifying. CPL 240.45 (subd 2) requires the defense counsel to make this report available to the prosecutor before presentation of the defendant’s direct case. The sanctions for failure to do so are provided by CPL 240.70 (subd 1) and they include granting of a continuance, prohibiting the introduction of certain evidence or calling of certain witnesses and “any other appropriate action.” Under the circumstances of this case it was an abuse of discretion to apply the severe sanction of preclusion when a brief continuance to permit the prosecutor to examine the three-page report prior to cross-examination would have been more appropriate. Accordingly, the judgment is reversed and a new trial granted. (Appeal from judgment of Supreme Court, Erie County, Kasler, J. — arson, fourth degree, and another charge.) Present — Simons, J. P., Hancock, Jr., Doerr, Boomer and Schnepp, JJ.