Opinion
99-05731
January 15, 2002
March 11, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silverman, J.), rendered June 7, 1999, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Martin, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence and his statements to law enforcement authorities.
Andrew C. Fine, New York, N.Y. (David Crow of counsel), and White Case, LLP, New York, N.Y. (Tim McCarthy of counsel), for appellant (one brief filed).
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Todd S. Schulman of counsel), for respondent.
FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, GLORIA GOLDSTEIN, and ROBERT W. SCHMIDT, JJ.
ORDERED that the matter is remitted to the Supreme Court, Kings County, to hear and report on the issue of whether the memo book of one of the arresting police officers was available, and if not, what efforts were made by the respondent to locate the memo book, and the appeal is held in abeyance in the interim. The Supreme Court shall file its report with all convenient speed.
At the suppression hearing, the People indicated that the memo book of one of the arresting officers had not been located. As a result, the defendant requested an adjournment of the hearing on the basis that all Rosario material (see, People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) had not been turned over by the People. However, the court denied the request, and the record does not indicate the disposition of the Rosario issue. Under these circumstances, the matter must be remitted for a hearing to determine the facts regarding the availability of the memo book (see, People v. Banch, 80 N.Y.2d 610; People v. Malinsky, 15 N.Y.2d 86; People v. Cubilla, 181 A.D.2d 788; cf., People v. Rashid, 164 A.D.2d 951).
In light of this determination, we do not reach the defendant's remaining contentions at this time.