6.7 - E. Rosario Preserved For Appeal

• Jurisdiction: New York

E. Rosario Preserved for Appeal

Finally, there is the appellate preservation rule for purported Rosario violations.¹¹⁹⁸ A failure to object at a time when any Rosario violation could have been redressed constitutes a failure to preserve the issue for appeal.¹¹⁹⁹ There have been instances where a defense attorney has been aware of a Rosario oversight by the prosecution but awaits a guilty verdict before raising it. This is not a case of counsel being ineffective (albeit unethical and perhaps subject to discipline) but perhaps too slick:

Although a defendant is under no obligation to request such material, the issue would be unpreserved for appellate review where a defendant, aware of the People’s production oversight, “fail[s] to object at a time when any Rosario violation could have been redressed.” Our courts should not countenance gamesmanship and sandbagging by rewarding a defendant who becomes aware of a Rosario violation during trial, but studiously avoids raising the appropriate objection in pursuit of a tactical advantage. ¹²⁰⁰

Concerning subsection (1)(b), the People are required only to make available a record of a judgment of conviction of a prosecution witness. The prosecutor is “not obligated to also obtain and produce certificates of conviction.”¹²⁰¹

§ 240.50 Discovery; protective orders

1. The court in which the criminal action is pending may, upon motion of either party, or of any affected person, or upon determination of a motion of either party for an order of discovery, or upon its own initiative, issue a protective order denying, limiting, conditioning, delaying or regulating discovery pursuant to this article for good cause, including constitutional limitations, danger to the integrity of physical evidence or a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors which outweighs the usefulness of the discovery.

2. An order limiting, conditioning, delaying or regulating discovery may, among other things, require that any material copied or derived therefrom be maintained in the exclusive possession of the attorney for the discovering party and be used for the exclusive purpose of preparing for the defense or prosecution of the criminal action.

3. A motion for a protective order shall suspend discovery of the particular matter in dispute.

4. Notwithstanding any other provision of this article, the personal residence address of a police officer or correction officer shall not be required to be disclosed except pursuant to an order issued by a court following a finding of good cause.

[Case Law Gloss on CPL § 240.50]

Section 240.50 makes just about all of article 240 “subject to.” Upon motion of either party, or of any affected person, . . . for . . . a protective order (which need not be in writing) or the court sua sponte, discovery is suspended as to any “particular matter in dispute.” The protective order may be of such duration and form, including outright denial of the discovery sought, as warranted by the non-exclusive factors listed in CPL § 240.50(1), “or any other factor or set of factors which outweighs the usefulness of the discovery.” A court may issue a protective order excusing the prosecution from complying with an excessive, unduly burdensome demand for Rosario and Brady material.¹²⁰² It is “proper to prevent disclosure of . . . witnesses’ . . . names and addresses until just prior to their testimony” if there is danger of their being intimidated or harmed.¹²⁰³ It also has the authority to allow them to testify under fictitious names.¹²⁰⁴ A court may take proof in camera, on the record, without the defendant or his lawyer being present. Grand jury transcripts and other evidence may suffice.¹²⁰⁵

“Absent a substantial justification, courts must not examine witnesses about nonministerial matters in camera without counsel present or ex parte.”¹²⁰⁶

§ 240.60 Discovery; continuing duty to disclose

If, after complying with the provisions of this article or an order pursuant thereto, a party finds, either before or during trial, additional material subject to discovery or covered by such order, he shall promptly comply with the demand or order, refuse to comply with the demand where refusal is authorized, or apply for a protective order.

When in doubt, one should give it out—or give it to the court in camera for a record ruling on the matter. Self-help seldom helps those who help themselves. Courts, under this portion of the discovery statute, like to be asked, “May I?” The section covers materials previously ordered disclosed and Brady material. All of article 240’s preceding sections, with their obligations, are incorporated by reference in § 240.60.

§ 240.70 Discovery; sanctions; fees

1. If, during the course of

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