People v. Williams

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J.), rendered May 26, 1987, convicting him of robbery in the third degree and grand larceny in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The record reveals that the defendant was accused of robbing the complainant in a subway station. The token booth clerk on duty at the time observed the incident and promptly contacted the New York City Transit Authority Command Center, which apparently notified the New York City Police Department Communications Bureau. An emergency telephone 911 operator at the Communications Bureau received the communication from the Transit Authority and prepared a coded "Sprint” record of the communication. This record contained a brief description of the assailant and indicated that the original notification to the Transit Authority regarding the incident had emanated from the token booth clerk. The operator also dispatched a New York City Police Department unit to the scene. Shortly thereafter, two New York City Police Officers arrived at the scene and spoke to the complainant. They ascended to the street and discovered the defendant in a park across the street from the subway station. The complainant identified the defendant as the robber, whereupon the defendant was placed under arrest.

Prior to trial, the defendant’s counsel subpoenaed the Sprint record. However, due to a purported typographical error in the subpoena prepared by the defense, the Sprint record was not located and turned over to the defendant prior to trial. Subsequent to the defendant’s conviction, but prior to his sentencing, the defense counsel received the Sprint record and moved for a new trial on the grounds that the document constituted newly discovered evidence and Brady material. The trial court denied the motion. Moreover, although no Rosario claim was advanced, the court observed that the identity of the individual who contacted the emergency telephone 911 number was never established and the caller may have been a third party who did not testify at trial. On this appeal, the defendant contends that reversal is mandated because the failure to timely turn over the Sprint record constituted a Rosario violation. We disagree.

Pursuant to People v Rosario (9 NY2d 286), the prosecution is required to turn over any pretrial statement made by a prosecution witness relating to the subject matter of the witness’s testimony. In Rosario, the majority of the Court of Appeals abandoned the then existing rule in New York which had permitted the defendant to see and use the statement only if it contained matters inconsistent with the testimony given by the witness on the stand (see, People v Walsh, 262 NY 140; see also, People v Schainuck, 286 NY 161), and adopted the Federal rule of Jencks v United States (353 US 657). The rationale underlying that rule is to provide the defendant with a fair opportunity to cross-examine, and possibly discredit, a prosecution witness by reference to the prior statement of the witness. Of course, the use of any prior inconsistent statement for the purposes of impeachment is governed by the rules of evidence (see, Richardson, Evidence §§501, 502 [Prince 10th ed]). The Court of Appeals has recently adopted a per se rule in reviewing claimed Rosario violations, such that a total failure to turn over an available statement of a prosecution witness mandates reversal, notwithstanding the fact that the evidence of the defendant’s guilt may be overwhelming or that the prior statement may be innocuous or inconsequential to the cross-examination of the witness (see, People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56). However, while the penalties for Rosario violations may have increased, the category of statements identified as Rosario material has remained unchanged. Rosario material refers to "[a]ny written or recorded statement * * * made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness’s testimony” (CPL 240.45 [1] [a] [emphasis supplied]). It has never encompassed hearsay, rumor or gossip, attributable to a witness, that somehow finds its way into police files. Contrary to the defendant’s present contention, the Sprint report in this case does not constitute a written or recorded statement made by the token booth clerk who testified at trial and could not have been used to impeach him. Rather, it is a New York City Police Department employee’s coded version of a message received from a New York City Transit Authority employee. Hence, it is at best a secondhand recording of a statement allegedly attributable to a prosecution witness, fraught with all the risks of inaccuracy and unreliability attendant to the relaying of what is essentially hearsay information. Consequently, it stands in marked contrast to Rosario cases, which involve the use of a recorded prior statement which was made either by the witness himself or by an individual who directly heard the statement (see, e.g., People v Perez, 65 NY2d 154; People v Fields, 146 AD2d 505; People v Ray, 140 AD2d 380).

The dissent would extend the reach of the Rosario rule far beyond anything we have seen in this State in the past and far beyond the Federal Jencks rule to embrace matters which the defense views as "generally useful information” (People v Rosario, supra, at 290), rather than material to be used for impeachment purposes. Contrary to the position espoused by the dissent, the Rosario rule has only been applied to recorded statements made either directly by a witness who testified in the proceedings or by someone who heard the witness speak. Since the "firsthand” nature of the statement is essential to its use for impeachment purposes, this is not a semantic point. Furthermore, contrary to the view set forth in the dissent, the record is abundantly clear that the information recorded on the Sprint report in this case came from the Transit Authority Police rather than from the token booth clerk who was a witness at trial. The Sprint report itself, at its beginning, indicates: "TAPD 512” and, then following a cryptic narration of the event, states: "AUTH TAPD 512”. The token booth clerk testified that he only reported the incident to the Transit Authority Command Center on Jay Street. Even the defendant’s appellate counsel concedes that the witness called the Transit Authority, which then notified the Transit Authority Police Department, which in turn notified the New York City Police Department which made the Sprint report. The position of the dissent that there was some type of automatic electronic relay constitutes sheer speculation which is not only without a scintilla of support in the record, but is belied by the contents of the report itself and by the statements set forth in the brief of appellate counsel.

The Sprint record involved herein is similar to the tape recording of the physical description of the offender broadcast by police in People v Martinez (71 NY2d 937). In Martinez, it was revealed during a Wade hearing that an eyewitness, Gonzalez, had given a description of the perpetrator to Police Officer Mosely who wrote it down. After the trial began, defense counsel moved to preclude Gonzalez from testifying since he had not been given a copy of the statement of Gonzalez as recorded by Police Officer Mosely. Mosely was unavailable at the time of trial and no notes of this description could be found. However, the People were able to furnish defense counsel with a tape of Mosely’s transmission of the description from his radio car. The trial court denied the defendant’s motion to preclude Gonzalez’ testimony, but did give the jury an adverse inference charge because of the People’s failure to produce Officer Mosely’s notes. In affirming the conviction, the Court of Appeals recognized three differing categories of Rosario violations, i.e., delay in disclosing Rosario material, complete failure to disclose Rosario material, and, finally, loss or destruction of Rosario material. In Martinez, the Court of Appeals determined that Mosely’s notes were the Rosario material and since they had been inadvertently destroyed or lost, the trial court had discretion to fashion an appropriate remedy by giving an adverse inference charge. The tape recording of Police Officer Mosely reading from his notes was not considered Rosario material.

In the case before us, if a written record made by the Transit Authority of the token booth clerk’s call existed (see, People v Dudley, 156 AD2d 581), it would constitute Rosario material. However, the subsequent Sprint record of the Transit Authority communication does not. While the Sprint document in this case is even further removed from the initial source of the information than was the tape in People v Martinez (supra), we find it significant that the Court of Appeals in that case neither considered nor characterized the tape as Rosario material or its duplicative equivalent. Accordingly, inasmuch as the Sprint record before us is too remote from the actual statement of the witness to be considered Rosario material, the failure to turn it over to the defense did not constitute a Rosario violation. Contrary to the dissent, this holding will not foster any evasion of the salutory benefits of the Rosario rule. If the witness whose statement is at issue testifies that written notes of the statement were made, the existence of Rosario material has been established (see, People v Martinez, supra).

We have considered the defendant’s remaining contentions and find them to be without merit.

Mangano, P. J., Eiber and Sullivan, JJ., concur.