Opinion
August 21, 1995
Appeal from the Supreme Court, Queens County (Fisher, J.).
Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report on the branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities, and the appeal is held in abeyance in the interim. The Supreme Court, Queens County, is to file its report with all convenient speed.
At the defendant's first trial, during the cross-examination of the People's second witness, it was revealed that the prosecution had failed to give to the defense a notebook containing the notes of a police officer who had already testified at the Huntley hearing (see, People v. Huntley, 15 N.Y.2d 72) and at trial. The Supreme Court granted the defendant's motion for a mistrial. The defendant was subsequently convicted at a second trial of, inter alia, manslaughter in the second degree.
The defendant contends that the Supreme Court should have reopened the Huntley hearing and that the Supreme Court erred in finding that there was nothing in the notebook that was related to the Huntley hearing. We agree. Upon our review of the record, we find that the notebook is Rosario material (see, People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) and that it should have been given to the defendant prior to the hearing (see, People v. Banch, 80 N.Y.2d 610; People v. Malisky, 15 N.Y.2d 86, 90). Accordingly, the defendant is entitled to a new Huntley hearing. Bracken, J.P., Balletta, Pizzuto and Hart, JJ., concur.