I agree that a new hearing is required, but disagree that it should be limited in the first instance to the question of whether the prosecution misrepresented the availability of the evidence.
My view of the matter is that the evidence in question was either Brady material or it was not, and its status as such does not depend solely upon whether the prosecution misrepresented its availability. While the defense has indeed asserted that such misrepresentations were made, both expressly and implicitly in, for example, physician Michael Baden’s reference to his examination of “retained skull bones”, and while this assertion clearly is implicated in the Court of Appeals opinion in People v Bryce (88 NY2d 124), I do not construe the Court’s directive as justifying the limited inquiry sanctioned by the majority. The Court of Appeals ruled that “a hearing should be held to determine whether the District Attorney misrepresented to defense counsel that the skull and brain tissue had been preserved and that they would be available for examination by his experts before trial, whether the skull constituted Brady material and, if it did, whether a new trial is required” (id., at 128). Although this sentence may be susceptible to the construction accorded it by the majority, initially one wonders why the Court of Appeals did not insert “and if so” between the first and second inquiries as it did in the case of the second *80and third inquiries.* More importantly, manifest in the Court’s opinion is its concern with whether the evidence was Brady material and, if so, the effect of its nonavailability on the integrity of defendant’s conviction.
Defense counsel’s dogged determination has brought to light serious prosecution error, conclusively establishing that the State mishandled and misidentified important forensic evidence and then presented to the jury a false medical opinion. I am at odds with the majority’s premise that, notwithstanding this serious prosecution error, including mishandling, misidentifying and misrepresenting to the jury the critical medical evidence in the case, the question of whether defendant was deprived of a fair trial is reached only if a hearing court determines that affirmative misrepresentations were made by the prosecution. This would mean that even if the evidence was exculpatory (a determination which would never be made unless the first query was answered affirmatively), and even where, as here, defendant made a general Brady demand, the majority would hold the prosecutor under no duty to disclose it because defendant, by exhuming the child’s body, could have discovered the evidence himself. I cannot subscribe to such a construction of a prosecutor’s obligation under the Federal and State Constitutions, and Brady v Maryland (373 US 83), nor do I believe that it comports with the letter or the spirit of the Court of Appeals opinion.
I would reverse and remit for a new hearing before a different Judge, permitting a full and fair inquiry designed to elicit the truth and determine whether defendant was deprived of a fair trial.
Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur; Mikoll, J. P., dissents in part and concurs in part in a separate opinion.
Ordered that the order is reversed, on the law, and matter remitted to the County Court of Albany County for a new hearing before a different Judge.
Indeed, the directive is stated a second time in the opinion, with virtually identical language, diminishing the likelihood of chance phraseology.