People v Perry

People v Perry 2013 NY Slip Op 00012 Decided on January 3, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 3, 2013
Gonzalez, P.J., Friedman, Saxe, Richter, Abdus-Salaam, JJ.
8933 1054/09

[*1]The People of the State of New York, Respondent,

v

Nathan Perry, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (David Crow
of counsel), and Kirkland & Ellis LLP, New York (Jordan N.
Malz of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo of
counsel), for respondent.

Appeal from judgment, Supreme Court, Bronx County (Colleen D. Duffy, J.), rendered August 20, 2010, as amended March 19, 2012, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to concurrent terms of four years, held in abeyance, and the People directed to make the arresting officer's unredacted memo book available to this Court for its in camera review.

The record supports the inference that some of the material redacted from the arresting officer's memo book, which was turned over to the defense, constituted Rosario material (People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]; see also CPL 240.45) and was not otherwise protected from disclosure. Defendant is therefore entitled to an in camera review of the unredacted memo book to determine whether any of the deleted portions of the officer's notes constituted Rosario material and, if so, whether their nondisclosure caused defendant any prejudice (cf. People v Smith, 33 AD3d 462, 464 [1st Dept 2006], lv denied
8 NY3d 849 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2013

CLERK