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Defendant Files Appeal Challenging Evidence Omitted at Trial


This an appeal by the defendant from a judgment of the Supreme Court, Queens County rendered July 8, 1988, convicting him of robbery in the first degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. A source said that, the defendant was charged and convicted of robbing the complainant at knife point on August 4, 1987, at approximately 11:30 P.M. Accordingly, to her trial testimony, the complainant had been beaten and raped by a different assailant prior to the robbery. The rape allegedly occurred in an apartment located on 89th Avenue and 162nd Street in Queens. After the rape, the complainant left the apartment and was walking to a nearby hospital when she allegedly met the defendant. She testified that she had previously met the defendant when he dated her sister in June 1987.

A Lawyer said that, she further testified that the defendant approached her and asked whether she had been raped. After she replied that she had, the defendant told her to wait in front of a nearby building while he obtained a gun in order to apprehend the rapist. Instead, the defendant returned after several minutes, allegedly pointed a knife at the complainant’s face, and demanded jewelry from her. She complied by handing over three rings. The defendant then took the rings and rode away on a bicycle. The complainant also testified that she ran to a hospital, four blocks away, immediately after the robbery. She was admitted to the hospital and discharged two weeks later, at which time she reported the subject robbery to the police.

The issue on this appeal is whether the records concerning the complainant’s hospitalization after the robbery, a copy of which was in the possession of the District Attorney, constituted Rosario material which should have been turned over to the defense counsel for review prior to trial.

The Court finds that this issue was properly preserved for appellate review by a timely and specific request from the defense counsel to inspect the hospital records prior to trial. The prosecutor argued that the hospital records were not relevant to the case at bar, but provided them to the court for in camera review. After reviewing the records, the court determined that they were relevant to the rape charge but not the robbery charge. Accordingly, the defense counsel was not given the opportunity to review the hospital records despite making several attempts to see them.

The Court concludes that the hospital records contain statements attributed to the complainant which relate to the subject matter of her testimony at the instant robbery trial. Therefore, the records should have been turned over to the defense counsel as Rosario material. Although the complainant testified that she went to the hospital immediately after the robbery, which allegedly occurred at 11:30 P.M., the hospital records indicate that she was admitted nearly 12 hours later at about 11:15 A.M. According to information she provided to the medical staff, she had been “walking the streets” since the prior evening. Other entries made in connection with the complainant’s treatment also appear to relate to her testimony.

Under the circumstances of this case, the failure by the prosecution to deliver Rosario material to defense counsel constitutes per se error and is not subject to harmless error analysis. Even where, as in the case at bar, the trial judge makes an in camera inspection of the disputed statements, a harmless error analysis is inapplicable and reversal is required. Accordingly, the defendant’s conviction is reversed and a new trial is ordered. In light of the foregoing determination, the court finds it unnecessary to address the defendant’s remaining contentions.

Accordingly, the Court held that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.

If you are involved in a sex crime of rape, and there is a need for materiel information in the custody of another, seek the help of a Queens Rape Attorney and/or Queens Criminal Attorney in order to procure the relevant materials that can be of help on your defense. Call us at Stephen Bilkis and Associates for free legal advice.

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