People v. Fields

— Appeal from the judgment of the Supreme Court, New York County (Rose L. Rubin, J.), rendered on December 13, 1985, convicting defendant, following a jury trial, of criminal possession of a controlled substance in the fourth degree and sentencing him, as a predicate felon, to an indeterminate term of imprisonment of from 3 to 6 years, is held in abeyance and the matter remanded for a hearing to determine whether defendant received the effective assistance of counsel so as to knowingly and intelligently waive his right to move to set aside the judgment of conviction.

At the trial held in connection with the instant matter, Police Officer Joseph LaSalla testified that in the early evening of July 30, 1985, while it was still daylight, he was on foot patrol near 124th Street and Lenox Avenue in Manhattan when he observed defendant and two companions exit a yellow cab. As they did so, an unidentified man approached the officer and told him that he believed that defendant was carrying a gun. Officer LaSalla then looked at defendant and noticed a bulge in his right pants pocket. Defendant and his friends crossed to the west side of Lenox Avenue and walked north towards 125th Street. As Officer LaSalla began to follow defendant, he broadcast defendant’s description over the police radio. He stated that defendant was a black male, about 6 feet, 2 inches tall, wearing a bright red shirt, who was "a possible man with a gun.”

In the meantime, Police Officers Hector Arocena and Alfred Artesona were on motor patrol heading eastbound on 125th Street when they heard the radio call. After driving across Seventh Avenue, they spotted defendant on the north side of 125th Street. Officer Artesona, who was behind the wheel, maneuvered the police car onto the sidewalk as defendant was passing in front of the State office building at 163 West 125th Street. At that point, the two officers in the vehicle, as well as Officer LaSalla, saw defendant toss a brown medicine bottle with a white cap into the bushes along the building. According to Officer Arocena, the bottle landed near a Dixie cup lying underneath the bushes. Thereupon, Officers Arocena and LaSalla stopped defendant while Officer Artesona searched the bushes and recovered the bottle, which was found to contain 21 small glass vials having a white powdery substance. Defendant was arrested and searched, and an electronic pager, or beeper, was removed from the pocket where Officer LaSalla had observed the bulge. An analysis by a police chemist later revealed that the white substance was a cocaine mixture with an aggregate weight of one eighth of an ounce and five grains.

Based largely upon the foregoing facts, the jury convicted defendant Michael Fields of criminal possession of a controlled substance in the fourth degree. Defendant subsequently appeared for sentencing on December 13, 1985, more than three weeks after the jury had been discharged. On that date, the prosecutor provided defense counsel with the handwritten notes of a parole officer’s pretrial interview with Officer LaSalla. The District Attorney acknowledged that while this material should have been produced at or prior to trial, he had only just received the notes in question by messenger that same day. The prosecutor stated that he had spoken with the parole officer on the telephone and had requested that she mail him whatever notes she might have made in interviewing witnesses for defendant’s revocation of parole hearing. In that regard, there was some discrepancy between the parole officer’s notes and Officer LaSalla’s testimony to the extent that the notes indicated that Officer LaSalla had claimed that defendant discarded an envelope rather than a medicine bottle, that the bulge which the officer had noticed was in the back, not right, pants pocket of defendant and that he had received a call instead of a personal approach concerning a man with a gun.

Defendant’s attorney asked permission to confer with his client about the new Rosario material. The court agreed, and then defendant’s lawyer asserted (no recess or pause is reflected in the minutes of the proceeding) that "I’ve conferred with Mr. Fields on this. I’ve indicated to him that there does seem to be a contradiction in this write-up in that the indication is of an envelope being found with 21 viles [sic] rather than a pill container. * * * I’ve discussed that discrepancy with Mr. Fields and as well as the entire offered new Rosario material and Mr. Fields has indicated to me that he does not wish to reopen the trial based upon this particular matter itself.” Defense counsel, however, reserved the right to appeal on other grounds, and the court proceeded to pronounce sentence.

On September 18, 1987, defendant filed a motion pursuant to CPL 440.10 to vacate the judgment of conviction or, in the alternative, for an evidentiary hearing, alleging that he was denied his Sixth Amendment right to the effective assistance of counsel when his attorney failed to move to set aside the verdict upon learning that the prosecution had not produced the Rosario material during the trial. In his affidavit, defendant contended that his trial attorney had informed him that the undisclosed notes would not have made a difference in the outcome of the trial and advised defendant simply to appeal his conviction. His counsel had not, defendant asserted, explained that the People’s failure to provide the material would have entitled him to a reversal of his conviction and a new trial. The prosecutor, in response, argued that as a result of the statement made by his lawyer at sentencing, defendant had waived any claim to reopen the trial because of the parole officer’s notes. In an oral decision, the court subsequently denied defendant’s motion without conducting a hearing.

The law is clear that a violation of the Rosario rule (see, People v Rosario, 9 NY2d 286; CPL 240.45 [1] [a]) cannot be considered harmless error even if the nondisclosed material would have been of limited impeachment value to the defense so that the People’s failure to produce "constitute^] per se reversible error requiring a new trial” (People v Martinez, 71 NY2d 937, 940; see also, People v Jones, 70 NY2d 547; People v Perez, 65 NY2d 154; People v Consolazio, 40 NY2d 446). In the present situation, the People contend that the mandates of Rosario are inapplicable here. According to the prosecution, while it is the People’s obligation to provide to the defense all pertinent material in the possession of local law enforcement agencies, that duty does not extend to statements or other documents possessed by an independent administrative agency such as the State Division of Parole since these items cannot be deemed to be within the control of the local prosecutor. Thus, the People liken the parole officer’s notes involved in the present situation to a court stenographer’s minutes about which the Court of Appeals declared in People v Fishman (72 NY2d 884, 886), that "[t]he Rosario rule has no application in the circumstances of this case, where untranscribed plea minutes of a potential prosecution witness have been ordered but not received by the prosecution. Having had no immediate access of their own to the statements * * * the People cannot be held responsible for a failure to turn them over to defendant.”

There is, however, a crucial distinction between minutes transcribed by a court stenographer and a parole officer’s notes. Unlike a court stenographer, a parole officer is an employee of what is, in effect, a law enforcement agency, the State Division of Parole. Pursuant to CPL 2.10 (23), a parole officer is a peace officer with the power to take such action as making warrantless arrests, using physical and deadly force in executing an arrest or preventing an escape, carrying out constitutionally permissible warrantless searches, and possessing and taking custody of firearms not owned by the peace officer for the purpose of disposing or guarding such firearms (CPL 2.20). Moreover, the whole purpose of the parole officer’s interview with Officer LaSalla was to prepare parole violation charges against defendant, and if defendant were, at the conclusion of the appropriate proceedings, ultimately found to be guilty of those charges, he would likely be returned to prison to serve additional time. Violating a person’s parole and sending him back to prison is certainly a prosecutorial function.

Similarly, the notes of a parole officer are in no way comparable to confidential statements made to a registered social worker, which are statutorily protected from disclosure (CPLR 4508), determined by the Court of Appeals in People v Tissois (72 NY2d 75) not to be covered by the People’s Rosario obligation under the circumstances therein, or comparable to a newspaper reporter’s notes which this court ruled in Matter of Gina C. (138 AD2d 77) need not be produced by the prosecutor. (See also, People v Reedy, 70 NY2d 826, wherein the victim’s written version of the attack upon him was deemed not to be Rosario material.) It is significant that the social worker in People v Tissois (supra) was employed by the Brooklyn Society for the Prevention of Cruelty to Children, and in Matter of Gina C. (supra), the notes in question belonged to a reporter writing for The Village Voice. Clearly, in neither of these instances did the People have possession or control of the material at issue, constructive or otherwise, in that both entities, the Brooklyn Society for the Prevention of Cruelty to Children and The Village Voice, are, in common with court stenographers (see, People v Fishman, supra), not part of the prosecutorial function whereas the State Division of Parole does belong to the law enforcement system. Indeed, not only had the District Attorney herein specifically requested the parole officer to send him whatever notes she might have made in interviewing witnesses intended to be called at defendant’s bail revocation hearing, but, at defendant’s sentencing, the prosecutor conceded that these notes should have been provided at or prior to trial.

There is no authority for the sweeping proposition advanced by the People on appeal that their Rosario responsibility is limited to having to supply only those statements actually present in their own or police department files at the time of trial. Consequently, we decline to weaken the prosecution’s obligation by holding that the People have no duty to produce material in the possession of another law enforcement agency (see, People v Ranghelle, 69 NY2d 56), particularly one with which it apparently has frequent contact. Since the police officer’s statements to the parole officer were certainly not duplicative and were, to some extent, contradictory to those which he made at trial, the District Attorney was required to disclose them at or prior to trial, and the failure to do so constituted a Rosario violation.

Our concurring brother suggests (at 512) that the majority’s position would require the prosecutor affirmatively to seek out "any notes or written versions of prior unprivileged statements made by any prospective witnesses to parole or probation authorities, family therapists, drug or alcohol counselors, relatives, friends, confidantes or the like.” However, the holding of the majority memorandum is limited to the facts of the instant case, which involve the notes of a parole officer. In our view, such notes are Rosario material because they were in the possession or control of a law enforcement agency. While someone might legitimately disagree with the majority’s conclusion that the State Division of Parole is a law enforcement agency, it is contradictory to find that the prosecutor cannot, on the one hand, be deemed to have constructive possession or control over parole department documents but that the defendant is, on the other hand, entitled to a hearing because of the District Attorney’s admission that the parole officer’s summary should have been provided at trial and due to the fact that the prosecutor had been in telephone contact with the parole officer.

Notwithstanding any statement by the prosecutor, the notes in question are either Rosario material or they are not. If they are, failure to disclose the notes is per se reversible error; if they are not, the People were not obligated to produce them, and no hearing is warranted no matter what the District Attorney said or what was in his mind. That the People recognize this legal imperative is demonstrated by the fact that, on appeal, they argue simply that the State Division of Parole is an independent administrative agency not subject to the dictates of Rosario (supra). The People do not take the position that while the items being sought are indisputably not Rosario material, the District Attorney might still be required to turn them over under certain circumstances, such as, for example, if he had some knowledge of the contents thereof. Finally, it should be noted that the defense’s ability to obtain the notes on its own initiative is entirely irrelevant to whether the People were required to turn them over since the Court of Appeals has expressly rejected the notion that the Rosario rule, although otherwise applicable, need not be complied with in those instances where the defense has knowledge of, or access to, the material (People v Ranghelle, supra, at 64).

The People also claim that regardless of whether they were obliged to produce the parole officer’s notes, defendant waived his right to challenge the conviction on this ground. Yet, in submitting a motion under CPL 440.10, defendant stated in his affidavit that his attorney had not properly advised him of the legal effects of the District Attorney’s nondisclosure and that the failure of his counsel to communicate adequately with him amounted to ineffective assistance of counsel. Based upon defendant’s allegations, there is a question of fact as to whether his legal representation was sufficiently effective to enable him to knowingly and intelligently waive his right to move to set aside the conviction. Accordingly, defendant is entitled to a hearing with respect to this issue. Concur— Kupferman, J. R, Carro, Milonas and Smith, JJ.