People v. Wahad

Titone, J.

(dissenting). For the reasons stated in my dissenting opinion in People v Jackson (78 NY2d 638 [decided herewith]), I would conclude that defendant’s postconviction motion to vacate was properly granted on the ground that the prosecution had failed to turn over certain items constituting Rosario material. In my view, no further showing need be made, since the per se rule of reversal that has long been applied in direct appeals (see, e.g., People v Jones, 70 NY2d 547) should also be applied in this CPL 440.10 proceeding. Accordingly, the order below should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye and Bellacosa concur in memorandum; Judge Titone dissents and votes to affirm in an opinion in which Judges Alexander and Hancock, Jr., concur.

Order reversed, etc.