PEOPLE v. JOHNSON (1997)

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), rendered January 4, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/2 to 9 years, unanimously reversed, on the law, and the matter remanded for a new trial.

As it is conceded by the People that Rosario material in the form of the original Request for Laboratory Analysis form was never disclosed to defendant, defendant's conviction must be reversed and a new trial ordered (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64;  People v. Jones, 70 N.Y.2d 547, 523 N.Y.S.2d 53, 517 N.E.2d 865;  People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011;  CPL § 240.45[1][a] ).   A photocopy of the form that was provided to the defense did not include certain alterations testified to by a police witness, and therefore cannot be considered a duplicative equivalent of the original (see, People v. Joseph, 86 N.Y.2d 565, 569, 635 N.Y.S.2d 123, 658 N.E.2d 996;  People v. Young, 79 N.Y.2d 365, 370, 582 N.Y.S.2d 977, 591 N.E.2d 1163;  People v. Wallace, 76 N.Y.2d 953, 955, 563 N.Y.S.2d 722, 565 N.E.2d 471).   Defense counsel's election not to cross-examine the witness further without the original does not excuse this disclosure violation (People v. Goins, 73 N.Y.2d 989, 991, 540 N.Y.S.2d 994, 538 N.E.2d 346).   Additionally, since the prosecution did not even attempt to establish that the original document was lost or destroyed, let alone meet its burden on this issue, no lesser sanction was available (see, People v. Banch, 80 N.Y.2d 610, 620, 593 N.Y.S.2d 491, 608 N.E.2d 1069;  People v. Morton, 189 A.D.2d 488, 495, 596 N.Y.S.2d 783).

MEMORANDUM DECISION.