Opinion
May 27, 1988
Appeal from the Monroe County Court, Celli, J.
Present — Doerr, J.P., Denman, Green, Lawton and Davis, JJ.
Judgment unanimously reversed on the law and indictment dismissed without prejudice to the People resubmitting appropriate charges to another Grand Jury. Memorandum: Defendant was convicted of first degree manslaughter as a lesser included offense of second degree murder as charged in the indictment. Defendant admitted shooting an acquaintance but claimed he did so in self-defense. Defense counsel's cross-examination of four of the People's witnesses revealed that each witness had been interviewed by the prosecutor who had taken handwritten notes of each interview. The prosecutor refused to turn over his notes to defense counsel, arguing that they constituted attorney work product and were exempt from the Rosario rule (see, People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866; see also, CPL 240.45). The trial court agreed and denied defense counsel's request for disclosure. We reverse.
The prosecutor's notes clearly constitute Rosario material (see, People v Consolazio, 40 N.Y.2d 446, 453, cert denied 433 U.S. 914; People v Hawa, 15 A.D.2d 740, affd 13 N.Y.2d 718) and are neither exempt as attorney work product (see, People v Horton, 19 A.D.2d 80), nor duplicative of other statements given (see, People v Consolazio, supra). The prosecutor's alleged good-faith belief that the notes were privileged is irrelevant (People v Jones, 70 N.Y.2d 547, 553; People v Ranghelle, 69 N.Y.2d 56, 63-64), as is the fact that the prosecutor allowed the court to examine the notes (see, People v Perez, 65 N.Y.2d 154, 160). The prosecutor's violation of the Rosario rule requires reversal of the judgment and a new trial without regard to harmless error analysis or whether defendant suffered any prejudice (see, People v Jones, supra; People v Novoa, 70 N.Y.2d 490, 499; People v Ranghelle, supra; People v Perez, supra). Accordingly, the indictment must be dismissed, without prejudice to the People to resubmit the case to another Grand Jury (see, People v Gonzalez, 61 N.Y.2d 633).