6.4 - B. Rosario I

• Jurisdiction: New York

B. Rosario I

The Rosario rule from 1976 to 2001 would have had difficulty recognizing the original Rosario decision, which applied harmless error analysis in affirming Mr. Rosario’s conviction, despite the fact that all the prosecution’s witnesses’ prior statements had not been turned over. The Court of Appeals said—and still says—that its new rule, following the Supreme Court’s Jencks decision, turned largely on policy considerations, not constitutional imperative. To coin a phrase, this had been “Rosario I.”¹¹⁸²

New York’s legislature enacted a harmless error rule in CPL § 470.05(1), which states, “An appellate court must determine an appeal without regard to technical errors or defects which do...