Opinion
April 11, 1994
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, and the motion to quash is granted in its entirety.
The Supreme Court erred in denying the petitioner's motion to quash. The materials subject to the subpoena were confidential, and were not within the control of the District Attorney. Hence they constituted neither Brady nor Rosario material (see, Matter of County of Nassau v Sullivan, 194 A.D.2d 236). Furthermore, there is nothing in the record upon which to base an inference that the subpoenaed material might include evidence which would be relevant in the underlying criminal prosecution (see, Matter of County of Nassau v Sullivan, supra).
We reject the invitation extended by counsel for the defendant in the underlying criminal prosecution to dismiss this appeal as academic. Counsel's representation that "no appeal from conviction or sentence is being taken" does not constitute an enforceable guarantee that no appeal might be attempted in the future. In any event, review of the issue raised on this appeal is warranted despite its possible mootness, because the issue involved is significant, and is likely to recur (see, Matter of Grattan v People, 65 N.Y.2d 243, 245, n 1). Bracken, J.P., Lawrence, Copertino and Florio, JJ., concur.