PEOPLE v. MACKEY (1998)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered November 30, 1995, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

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

After a jury trial, the defendant and his codefendant, Everad Salomon, were convicted of first and second degree robbery in connection with a gunpoint robbery on a Queens street.   Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

 The defendant's conviction must be reversed, however, because he was substantially prejudiced by the People's failure to provide certain Rosario material related to a critical aspect of the complainant's testimony until after she had been cross-examined.   As a result of the People's delay in providing the material-a record book maintained by the complainant which was in the People's control-damaging testimony was unwittingly elicited during her cross-examination.   The court refused to strike the testimony, but instead gave the jury an adverse inference charge regarding a different document which the People had failed to produce.

 Rosario material must be provided at a time when it meaningfully can be used to prepare cross-examination.  “The fairness concept embodied in the Rosario rule cannot be said to have been satisfied when pretrial statements revealing a potential trap for the cross-examiner are furnished to defense counsel only after the trap has sprung” (People v. Perez, 65 N.Y.2d 154, 159, 490 N.Y.S.2d 747, 480 N.E.2d 361).   Here, the prosecutor deliberately withheld information which was likely to be elicited on cross-examination and would be damaging to the defense.   Consequently, reversal is required (see, People v. Perez, supra).

In light of our determination, we need not address the defendant's remaining contentions.

MEMORANDUM BY THE COURT.