People v. Rogelio

—Judgment, Supreme Court, Bronx County (Antonio Brandveen, J.), rendered September 15, 1987, convicting defendant, after a jury trial, of robbery in the first degree (Penal Law § 160.15 [4]) and sentencing him to an indeterminate term of imprisonment of from 4 to 12 years, is affirmed.

In the sole issue raised on appeal, defendant argues that the prosecutor failed to turn over a writeup sheet containing the statements of a prosecution witness, Police Officer Wesley Mason, as required under People v Rosario (9 NY2d 286, rearg *360denied 9 NY2d 908, cert denied 368 US 866, rearg denied 14 NY2d 876, 15 NY2d 765). The Rosario material at issue had come to defense counsel’s attention at some time prior to the commencement of trial, and he had requested that the Trial Assistant provide him with a copy.

At the conclusion of the trial court’s charge to the jury, the matter was brought to the court’s attention. Stressing that he raised the matter "with some reluctance” and wanted "the record [to] be clear” that he was not "patronizing [sic]" the ADA, for whom he had "a high regard”, defense counsel stated that, although the ADA "indicated to me that he would provide me with” the Rosario material, "he unfortunately neglected to [and] I didn’t realize until just during the court’s charge when I saw it on counsel’s table”. On appeal, defendant contends that these circumstances constitute a Rosario violation requiring reversal and the grant of a new trial. We disagree.

The rule is well established that the prosecutor is under a general obligation to provide defense counsel with all pretrial statements of prosecution witnesses (People v Rosario, supra, at 289) and that this material includes worksheets prepared by the prosecutor. (People v Consolazio, 40 NY2d 446, 453.) The purpose of this salutary rule is to "afford the defendant a fair opportunity to cross-examine the People’s witnesses at trial”. (People v Poole, 48 NY2d 144, 149.) However, application of the Rosario rule is always subject to "common sense limits”. (People v Ranghelle, 69 NY2d 56, 63 [and cases cited therein].) A review of the record before us persuades that such a line must be drawn here.

Despite the prosecutor’s candidly admitted lapse of memory with respect to the particular statement in question—other Rosario material having previously been provided—defense counsel could easily have avoided the disadvantage and prejudice which are now claimed on appeal by simply reminding the ADA. The pretrial statement was contained in the ADA’s trial folder, which the record establishes was carried into the courtroom on every day of the trial. In the postcharge colloquy on the matter, defense counsel gave no reason for not having reminded the ADA, and we can only assume, as the ADA states in the record, that "[I]t would appear he [also] forgot about it”.

Thus, contrary to the circumstances and analysis in the case law relied upon by our dissenting colleague, this situation does not constitute a "withholding” of Rosario material, either *361deliberate or otherwise. (See, e.g., People v Perez, 65 NY2d 154, 158-159 [prosecution refused to provide the transcript of a taped telephone conversation between a prosecution witness and defendant’s relative, arguing, inter alia, that Rosario (supra) had no application to private parties]; People v Ranghelle, supra, at 60 [prosecution failed to timely produce a police complaint report because, despite good-faith efforts to obtain it, the report was not in the Trial Assistant’s possession]; People v Jones, 70 NY2d 547, 549 [prosecution failed to turn over five pages of notes pertaining to a paid confidential informant, as well as a DEA-6 form "debriefing” the witness, and conceded the error, but argued it was harmless].) Nor is this case analogous to one in which the prosecutor relies upon the defense counsel’s knowledge of, and equal access to, via subpoena, the material sought. (See, People v Ranghelle, supra, at 64.)

Rather, the record before us establishes that the prosecutor told defense counsel that "he was welcome to [the material]” but then "quite frankly * * * forgot about it”. While forgetfulness would not normally constitute , a valid excuse, we are not persuaded that it falls into the category of "withholding” in this case, since it was defense counsel’s own inattention that ultimately resulted in his not obtaining the material. In short, the prosecutor was willing and able to comply, and the sole obstacle was a lapse in memory which, if excusable for defense counsel who proceeded to cross-examination of the witness without first obtaining Rosario material, must, surely, be excusable for his adversary. Concur—Kupferman, J. P., Ross, Kassal and Rubin, JJ.