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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Tracey L. PUGH, appellant.

Decided: February 22, 1999

SONDRA MILLER, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN and DANIEL F. LUCIANO, JJ. Alan F. Katz, Garden City, N.Y. (Anthony Collellari of counsel), for appellant. Denis Dillon, District Attorney, Mineola, N.Y. (Karen W. Weiss and Edward Miller of counsel), for respondent.

Appeal by the defendant from (1) a purported judgment of the County Court, Nassau County (Wexner, J.), rendered March 21, 1996, and (2) a judgment of the same court rendered November 15, 1996, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.   The appeal from the judgment brings up for review the denial, after a hearing (Mogil, J.), of those branches of the defendant's pretrial motion which were to suppress identification testimony and statements he made to law enforcement authorities.

ORDERED on the court's own motion, that the appeal from the purported judgment is dismissed, as no appeal lies from a jury verdict;  and it is further,

ORDERED that the judgment is reversed, on the law, and a new trial is ordered, to be preceded by a de novo suppression hearing.

 The defendant contends that the court erroneously ruled at the suppression hearing that a certain report prepared by the prosecutor's witness was not Rosario material (see, 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), and could not be turned over to the defense for purposes of the hearing.   The People now correctly concede that that ruling was erroneous, and that the report constituted Rosario material with respect to the prosecutor's witness (see, People v. Consolazio, 40 N.Y.2d 446, 452-455, 387 N.Y.S.2d 62, 354 N.E.2d 801, cert. denied 433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100).   The People argue, however, that the defendant's contention in this regard is unpreserved for appellate review because the defendant did not move to reopen the suppression hearing when the report was later disclosed.   In view of the prior unequivocal ruling that the report did not constitute Rosario material for purposes of the suppression hearing, such a motion would have been futile (see, People v. Mezon, 80 N.Y.2d 155, 160, 589 N.Y.S.2d 838, 603 N.E.2d 943).   Where a defendant is deprived of the opportunity to cross-examine a suppression hearing witness with Rosario material, the remedy is a new suppression hearing (see, People v. Banch, 80 N.Y.2d 610, 618, 593 N.Y.S.2d 491, 608 N.E.2d 1069).   Accordingly, a de novo suppression hearing is warranted.

 Moreover, a new trial is warranted.   At the trial, the complainant's identification testimony was the sole evidence establishing his guilt as the perpetrator.   The complainant initially described the perpetrator as six feet tall and 200 pounds, while the defendant was five feet seven inches tall and weighed between 210 and 215 pounds.

 The court improperly precluded testimony by a defense witness that another man had confessed to her that he, not the defendant, committed the crime.   That testimony satisfied the four-prong test enunciated in People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612, for admitting in evidence the statement of an out-of-court declarant as a declaration against penal interests, that is, (1) the declarant must be unavailable, (2) the declarant must be aware that the statement was adverse to his penal interest, (3) the declarant must have had competent knowledge of the facts underlying the statement, and (4) supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability.   To establish reliability “there must be some evidence, independent of the declaration itself, which fairly tends to support the facts asserted therein” (People v. Settles, supra, at 168, 412 N.Y.S.2d 874, 385 N.E.2d 612).

Here, two eyewitnesses had identified that declarant as the perpetrator, and the declarant matched both their description and the complainant's description of the perpetrator.   Thus, circumstances independent of the statement itself were present to attest to its trustworthiness (see, People v. Settles, supra, at 167, 412 N.Y.S.2d 874, 385 N.E.2d 612).   Further, the defendant established that the declarant was unavailable to testify (see, People v. Nicholson, 108 A.D.2d 929, 485 N.Y.S.2d 821), and that he was aware that his statement was against his penal interests (see, People v. Ivy, 217 A.D.2d 948, 630 N.Y.S.2d 820).   It is undisputed that the declarant had competent knowledge of the facts underlying the statement.   Accordingly, the statement should have been admitted.

 Since there must be a new trial, we note that certain arguments of the prosecutor should not be repeated.   The prosecutor in summation argued, over objection, that the defendant, in order to sustain his position, had to “prove” that the complainant was mistaken and the investigating detective lied.   The prosecutor also argued, without any basis in the record, that one of the defendant's eyewitnesses testified on the defendant's behalf because she was afraid of the defendant.   These statements were clearly improper (see, People v. Bull, 218 A.D.2d 663, 630 N.Y.S.2d 354).

Although a one-witness identification is sufficient to support a judgment of conviction, in this close case, all of the foregoing errors “may have tipped the balance against defendant and operated to deprive him of a fair trial” (People v. Morris, 100 A.D.2d 600, 473 N.Y.S.2d 550).

The defendant's remaining contentions are either without merit or need not be addressed in light of our determination.


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