Opinion
May 25, 1989
Appeal from the Supreme Court, New York County (James J. Leff, J.).
As the People with commendable candor concede, defendant is entitled to a new trial on the ground that a "work sheet" summarizing pretrial statements made to the District Attorney's office by the police officer witnesses, which the prosecutor declined to furnish to the defense upon the latter's timely application therefor, was clearly discoverable (People v Consolazio, 40 N.Y.2d 446, cert denied 433 U.S. 914; People v Cavallerio, 71 A.D.2d 338).
Reversal of this conviction, rather than merely holding this appeal in abeyance, is mandated because the record in question is missing and cannot be found by the People after diligent search. It is therefore impossible for a trial court, on remand, to review the work sheet in camera to determine whether its contents were the "`duplicative equivalent'" (People v Ranghelle, 69 N.Y.2d 56, 63) of whatever other material was turned over to the defense, a circumstance which would abate the duty to disclose (CPL 240.45[a]). The trial court erred when it held that these statements were exempt from disclosure as attorney's work product under CPL 240.10(2). Under these circumstances, there must be a new trial.
We have examined the other points of alleged error raised by defendant and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Ross, Rosenberger and Wallach, JJ.