People v. Lumpkin , 173 A.D.2d 738 ( 1991 )

Lawrence, J. P.,

concurs in the result, with the following memorandum: I concur with my colleagues that a new trial is warranted because I am of the view that the Trial Justice improperly left the court room during the reading back of the complainant’s testimony to the jury (see, People v Ahmed, 66 NY2d 307; People v Patterson, 39 NY2d 288, affd 432 US 197).

Further, since the matter is being remitted for a new trial, the discussion of the issue of the alleged Rosario violation (see, People v Rosario, 9 NY2d 286, 289, cert denied 368 US 866), should be clarified. The record discloses that there is no merit to the defendant’s contention, raised for the first time on appeal, that he was entitled to the production of certain handwritten notes made by an investigating police officer since such notes did not constitute Rosario material. The testimony of that police officer indicated that he had made a handwritten "scratch copy” on a police complaint report form, which information was then typed onto another police complaint report form, and the "scratch copy” was returned to the precinct. The record does not disclose whether the "scratch copy” is still available. At the trial, the typed version was turned over to the defendant. Unlike the handwritten "notes” at issue in People v Wallace (76 NY2d 953, 954-955), in this case the "scratch copy” was clearly made to facilitate preparation of the typed complaint report form. Under similar circumstances, this court has held that such a typed version is a "duplicative equivalent” (People v Consolazio, 40 NY2d 446, 454, cert denied 433 US 914) of the handwritten copy (see, People v Winthrop, 171 AD2d 829). Accordingly, in my view, the "scratch copy” of the police complaint report form need not be produced at a new trial, and any further inquiry at the retrial is unwarranted.