Opinion
January 10, 1995
Appeal from the Supreme Court, Bronx County (Frank Diaz, J.).
Audiotapes, notes, and worksheets made by medical examiners in connection with autopsy reports are not Rosario material (People v. Smith, 206 A.D.2d 102; People v. Nova, 206 A.D.2d 132; accord, People v. Washington, 196 A.D.2d 346 [2d Dept], lv granted 83 N.Y.2d 1008). We have reviewed the evidence submitted in connection with the motion to vacate judgment and while we agree (and see no need to remand for presentation of further evidence) that the Office of the Chief Medical Examiner (OCME) works closely with the police and prosecution and often generates scientific evidence relevant to issues other than cause of death, we find this to be an insufficient basis on which to take the unprecedented step of extending People v. Rosario ( 9 N.Y.2d 286) to cover materials in the sole possession of a non-law-enforcement agency. Unlike law enforcement agencies, OCME has no adversarial position with regard to criminal defendants, and does not afford the People "control" of its records merely by cooperating in investigations.
In any event, we also find that the undisclosed documents in this case were not Rosario material to begin with. Two of the three items were prepared by a medical examiner who did not testify, and we reject the argument that they somehow became Rosario material vicariously (Matter of Christopher W., 202 A.D.2d 305). The third item was an administrative processing form devoid of information (see, People v. Watkins, 157 A.D.2d 301, 312-314).
The court properly replaced a sworn juror, over objection, when the juror twice stated that she could not be fair because she recognized defendant's mother as a person she had often seen, and possibly greeted, in her neighborhood (People v. Buford, 69 N.Y.2d 290, 299; People v. Galvin, 112 A.D.2d 1090).
Defendant was not deprived of a fair trial when the prosecutor asked a defense witness whether defendant had a drug rivalry with the deceased. This question was obviously relevant to motive (People v. Cedeno, 175 A.D.2d 767, 769, lv denied 79 N.Y.2d 854), provided that it was asked in good faith (People v. Alamo, 23 N.Y.2d 630, 633, cert denied 396 U.S. 879). While defendant made a generalized objection to the question, he did not challenge the good faith basis of the inquiry (see, People v. Johnson, 186 A.D.2d 356, lv denied 81 N.Y.2d 763), and therefore cannot complain that the People have first revealed their good faith basis on the appeal.
Concur — Sullivan, J.P., Ellerin and Asch, JJ.
While I agree with the views expressed by Presiding Justice Murphy in his dissent in People v. Smith ( 206 A.D.2d 102, 114), I concur in the result in the instant case in order to avoid the fiasco that derived from the decision in People v. Antommarchi ( 80 N.Y.2d 247) as limited by People v. Mitchell ( 80 N.Y.2d 519).
In a homicide case, there is nothing more significant in the way of information for a defendant than the Medical Examiner's report and its underlying material. Call it Rosario material if you will, but a rose by any other name is still a rose. However, such rule should be prospective only.