People v. Velasquez

— Judgment of the Supreme Court, Bronx County (Bonnie Wittner, J.), rendered on October 24, 1989, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of imprisonment of six to twelve years, reversed, on the law, the facts, and as a matter of discretion, in the interest of justice, and the matter is remanded for a new trial.

The defendant was arrested and charged as a result of a "buy and bust” operation allegedly involving the sale of two vials of "crack” cocaine. Police Officer Ponce testified that he purchased the two vials for $10 of pre-marked buy money from a man standing at a street corner after dark. The only light provided was from a street light. Officer Ponce testified that he wrote a description of the defendant on a small envelope containing the two vials. Officer Ponce testified that he later destroyed the small envelope and he sealed the evidence into a larger envelope. Officer Pogeweit testified that he arrested defendant after receiving a radio transmission from Officer Ponce with a description of defendant. Officer Pogeweit did not write the description down. At trial, Officer *582Pogeweit testified that the person he arrested was a Hispanic male with a "mustache and beard, raggedy hair, approximately five-five, one hundred and seventy pounds, wearing a long maroon jacket, bluejeans and white sneakers.”

Officer Ponce testified that he had transferred all of the information from the envelope onto the buy report, so he didn’t think he had any need for the envelope. The buy report stated that the seller was 170 pounds, 33 years old, and 5 feet 5 inches tall, information that coincides with information elicited upon arrest. It appears from the record that Officer Ponce destroyed the envelope before filling out the buy report.

At trial, defense counsel attempted to cross-examine Officer Ponce as to the detailed information stated in the buy report, the exact weight and age of defendant, and attempted to inquire whether the information came from the arresting officer. The court repeatedly sustained the People’s objection to this line of inquiry. No application for an appropriate sanction for the non-production of this concededly Rosario material was made.

We hold that defendant was deprived of a fair trial by the refusal of the court to permit inquiry on the source of the description in the buy report (see, People v Martinez, 71 NY2d 937; People v Rosario, 9 NY2d 286, cert denied 368 US 866).

Although no application was made for the appropriate sanction of striking the relevant evidence (see, People v Wallace, 76 NY2d 953), in light of the dispute concerning defendant’s motion for reassignment of counsel, we reach the issue in the interest of justice. Accordingly, we reverse and remand for a new trial. On this record, as in Wallace, which involves similar facts, defendant was sufficiently prejudiced by the failure to impose a sanction for the conceded Rosario violation, that harmless error analysis is inappropriate. Concur— Murphy, P. J., Rosenberger and Smith, JJ.