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People v. Gourgue

Appellate Division of the Supreme Court of New York, Second Department
May 5, 1997
239 A.D.2d 357 (N.Y. App. Div. 1997)

Opinion

May 5, 1997

Appeal from the Supreme Court, Kings County (Douglass, J.).


Ordered that the judgment is reversed, on the law, and a new trial is ordered.

The defendant contends that a list of questions prepared by the prosecutor during a pretrial interview with the complaining witness constituted Rosario material ( see, People v. Rosario, 9 N.Y.2d 286), which should have been disclosed to the defense. We agree. It is well settled that "[t]he character of a statement is not to be determined by the manner in which it is recorded" ( People v. Consolazio, 40 N.Y.2d 446, 453), and that the defendant is entitled to witness statements in whatever form they take ( see, People v. Cavallerio, 71 A.D.2d 338, 344; see also, People v. Machado, 228 A.D.2d 700). Here, the prosecutor incorporated factual statements made by the complainant into a list of proposed questions with the admitted intent of circumventing the Rosario rule by recording the statements in question form. Since the material prepared by the prosecutor clearly included the complainant's statements and was not merely attorney work product, the court erred in denying the defendant's request for disclosure ( see, People v. Consolazio, supra; People v Barrigar, 233 A.D.2d 845; People v. Cubilla, 181 A.D.2d 788; cf., People v. Shaw, 212 A.D.2d 745; People v. Gallardo, 196 A.D.2d 551; People v. Roberts, 178 A.D.2d 622). Accordingly, the defendant must be granted a new trial.

In light of our determination, we do not reach the defendant's remaining contentions.

Mangano, P.J., Pizzuto, Krausman and Luciano, JJ., concur.


Summaries of

People v. Gourgue

Appellate Division of the Supreme Court of New York, Second Department
May 5, 1997
239 A.D.2d 357 (N.Y. App. Div. 1997)
Case details for

People v. Gourgue

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LAWFORD GOURGUE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 5, 1997

Citations

239 A.D.2d 357 (N.Y. App. Div. 1997)
657 N.Y.S.2d 737

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