Opinion
June 18, 1990
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the matters are remitted to the Supreme Court, Kings County, to hear and report on the issues of whether (1) "Request to Buy" reports for January 2, 3 and 17, 1986, were created and, (2) if so, whether such reports are available or have been irretrievably lost, and (3) whether such reports were available at the time of trial, but withheld from the defendants, and the appeal is held in abeyance in the interim. The Supreme Court is to file its report with all convenient speed.
The defendants John Angelis and Russell Minnerly were jointly tried and convicted, inter alia, of numerous drug offenses in connection with a series of drug transactions with undercover police officers. At the trial, one of the undercover police officers involved in the investigation testified that standard police procedure required the preparation of "Request to Buy" reports in each instance when money was needed for a drug transaction. The defendants were provided with "Request to Buy" reports for two of the transactions underlying the instant indictment, but reports for the remaining three transactions were not turned over. The defendants' counsel jointly moved for an order in accordance with the requirements of People v. Rosario ( 9 N.Y.2d 286) to compel the People to provide them with "Request to Buy" reports for January 2, 3 and 17, 1986. The prosecutor stated simply that she did not believe the reports in question existed. In summarily denying the application the court stated "[I]f [the People] have violated [the] Rosario rules, then they will have a reversal". In a posttrial motion to set aside the jury verdict, the defendants repeated their claim of Rosario violations. Their motion was denied on the ground, inter alia, that the reports were duplicative equivalents of statements previously provided.
Generally, the representation of a prosecutor at trial that prior statements of a witness do not exist will suffice to resolve the issue and the court will be entitled to rely upon the representation to that effect (see, People v. Poole, 48 N.Y.2d 144, 149; People v. Dudley, 147 A.D.2d 655, 656; People v. Ciola, 136 A.D.2d 557, 558). However, it is equally well settled that where a defendant has articulated a factual basis for the assertion that a prosecutor is improperly denying the existence of Rosario materials or withholding such materials on the ground that they are not relevant, the trial court should conduct a hearing and examine the questioned documents in camera (see, People v. Adger, 75 N.Y.2d 723, 726; People v. Poole, supra). In the instant case, although the prosecutor expressed her belief that the allegedly missing "Request to Buy" reports did not exist, the testimony adduced at trial suggests that the three reports at issue may simply have been temporarily misplaced. Accordingly, we remit the matters to the Supreme Court for a hearing to determine whether the reports in question were ever created and, if so, whether such reports have been irretrievably lost. Thompson, J.P., Kunzeman, Harwood and Miller, JJ., concur.