New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Attorneys2 / TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY C...
Attorneys, Criminal Law, Evidence

TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL.

The First Department, over a concurrence, determined defendant was entitled to a new trial for two reasons: (1) the defendant should have been provided with Rosario material which tended to show the police may have confused defendant with another person arrested at the same time; and (2) the trial judge committed a mode of proceedings error by communicating with the jury off the record and outside the presence of defendant and counsel. The concurrence argued the judge did not commit a mode of proceedings error:

​

Supreme Court improperly limited both defense counsel’s discovery of Rosario material and his ability to cross-examine the police witnesses at trial. The Rosario material in question consisted of police documentation of the arrest of a third party. Supreme Court denied defendant’s discovery request, rejecting his trial counsel’s argument that defendant and the third party, both Hispanic males, had been contemporaneously arrested and separately charged with selling drugs to the same undercover officer at approximately the same time and location. In the absence of Supreme Court’s discovery limitations, defense counsel might have reasonably established a motive to fabricate the evidence due to police confusion between defendant and the third party … . Furthermore, as we have stated, where there is evidence raising the possibility of a “police motive to fabricate,” cross-examination of police witnesses is “highly relevant” … . Thus, Supreme Court’s errors deprived defendant of his right to present a defense … . As there was “a reasonable possibility that the non-disclosure materially contributed to the result of the trial” … , Supreme Court’s errors were not “harmless beyond a reasonable doubt” … .

​

Were we not reversing on the basis of error regarding the Rosario material and the related cross-examination, we would reverse on another ground — namely, Supreme Court’s communication with the jury off the record and outside the presence of defendant and his counsel.After the jurors had been deliberating for four days, they sent a note to the court stating they were deadlocked on the third count of the indictment and asking for guidance. The court discharged the jury for the day in contemplation of taking further actions, possibly including the delivery of an Allen charge, in the morning. The next morning, in defendant’s and his counsel’s absence, the court instructed the jury, off the record, to resume deliberations. The same afternoon, the court informed defendant and his counsel of this instruction, and counsel did not object. People v Farez, 2017 NY Slip Op 04041, 1st Dept 5-18-17

 

CRIMINAL LAW (TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/EVIDENCE (CRIMINAL LAW, ROSARIO MATERIAL, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/ROSARIO MATERIAL (CRIMINAL LAW, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/JURIES (CRIMINAL LAW, ROSARIO MATERIAL, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)/MODE OF PROCEEDINGS ERROR (CRIMINAL LAW, TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL)

May 18, 2017
Tags: First Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 CurlyHost https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png CurlyHost2017-05-18 14:14:332020-02-06 02:02:07TRIAL JUDGE IMPROPERLY LIMITED DISCOVERY OF ROSARIO MATERIAL AND IMPROPERLY COMMUNICATED WITH THE JURY OFF THE RECORD AND OUTSIDE THE PRESENCE OF DEFENDANT AND COUNSEL.
You might also like
NO JUSTICIABLE CONTROVERY BETWEEN LAW SCHOOL AND AN ALLEGED DIPLOMA MILL, DECLARATORY JUDGMENT ACTION PROPERLY DISMISSED.
THE ATTORNEY GENERAL’S PETITION ALLEGING RESPONDENT DISINFECTANT-DISTRIBUTOR ENGAGED IN PRICE GOUGING AT THE OUTSET OF THE COVID-19 PANDEMIC SHOULD NOT HAVE BEEN DISMISSED; THE CONTROLLING STATUTE, GENERAL BUSINESS LAW 396-R, IS NOT VOID FOR VAGUENESS (FIRST DEPT).
Plank Used to Access Work Area Not Covered by Industrial Code—Labor Law 241(6) Action Dismissed
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE.
No Actionable Violations by Bank Re: Overdraft Charges/Overdraft Charges Are Not Interest
THE PEOPLE DID NOT PROVE THE SEARCH OF DEFENDANT’S FANNY PACK WAS A VALID SEARCH INCIDENT TO ARREST; CONVICTIONS REVERSED (FIRST DEPT).
A COURT’S LIMIITED REVIEW POWERS RE AN AGENCY’S FINDINGS PURSUANT TO A STATE ENVIRONMENTAL REVIEW QUALITY ACT ASSESSMENT CLARIFIED, SUPREME COURT’S REJECTION OF AGENCY FINDINGS REVERSED. 
PLAINTIFF’S LADDER WAS PLACED ON A MUDDY WATERY SURFACE IN A TUNNEL AND IT SLIPPED OUT FROM UNDER HIM, PLAINTIFFS’ SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TENANT ASSAULTED BY INTRUDER, QUESTIONS OF FACT ABOUT FORESEEABILITY, ADEQUACY... ALTHOUGH THE EVIDENCE WAS FOUND AS A RESULT OF A SUPPRESSED STATEMENT, THE EVIDENCE...
Scroll to top