Opinion
July 10, 1995
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
Under the particular circumstances of this case, the Supreme Court erred in refusing to impose any sanctions based upon the prosecution's failure to produce Rosario material (see, People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) consisting of a police officer's handwritten notes. We do not believe that the typewritten complaint report, which was furnished at trial, can be considered to be the duplicative equivalent of the officer's notes. The officer himself was unable to compare the two documents and the evidence is otherwise insufficient to establish that "the content of the subject scratch notes had been accurately transcribed onto [the] official complaint report" (People v. Thomas, 202 A.D.2d 525, 526; see also, People v Jordan, 207 A.D.2d 700; cf., People v. Nieves, 205 A.D.2d 173, 184-185; People v. Boyd, 189 A.D.2d 433, 438-440; People v Holmes, 188 A.D.2d 618; People v. Hyde, 172 A.D.2d 305). Considering the nature of the content of the report in question, we also find that there was an adequate demonstration of prejudice (see, People v. Jordan, supra; People v. Schoolfield, 196 A.D.2d 111). The appropriate sanction would have been to deliver an adverse inference charge (see, People v. Walker, 209 A.D.2d 460).
Further, the complaining witness was permitted to testify concerning two occasions, both subsequent to the incident which forms the basis for the indictment, on which the defendant fired shots at him. Under the particular facts of this case, we find that "the probative value of the testimony of [these] uncharged crimes was outweighed by its prejudicial effect" (People v McKinney, 24 N.Y.2d 180, 185; see also, People v. Hudy, 73 N.Y.2d 40, 55; People v. Ventimiglia, 52 N.Y.2d 350). A new trial is warranted for this additional reason.
We have examined the defendant's remaining contention and find it to be without merit. Bracken, J.P., Rosenblatt, Ritter and Goldstein, JJ., concur.