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THE BELATED TURNING OVER OF ROSARIO MATERIAL PREJUDICED THE DEFENSE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the People’s belated turning over of Rosario material to the defense deprived defendant of a fair trial. The Rosario material consisted of notes taken by social workers describing the complainant’s therapy sessions. Defendant was prejudiced by the inability to adequately review the notes or to have an expert review them before the cross-examination of the complainant. The fact that the judge precluded the notes as a remedial measure was not helpful to the defendant:

… [D]efendant correctly contends that he is entitled to a new trial based on the People’s belated disclosure of certain notes between the complainant and social workers describing therapy sessions. The social workers were employed by the People, and their notes at all times had been in the People’s possession. The People must turn over to the defense any prior statements by a witness which relate to the subject matter of that witness’s testimony for use on cross-examination … . The material must be provided at a time when it can be useful to the defense … . When the late disclosure of Rosario material results in substantial prejudice to the defendant, a new trial is required … . Here, the defendant was substantially prejudiced by the late disclosure of these notes, as he was unable to sufficiently review the material or to retain an expert to do so. Moreover, the prejudice was not obviated by the remedial action taken by the Supreme Court, since the preclusion of the notes was not helpful to the defendant … . In light of the substantial prejudice to the defendant that resulted from the late disclosure of the Rosario material, a new trial is required … . People v Ibrahim, 2026 NY Slip Op 03687, Second Dept 6-10-26

Practice Point: The belated turning over of Rosario material deprived defendant of an adequate opportunity to review it before the cross-examination of the complainant warranting a new trial.

 

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