Opinion
February 7, 1994
Appeal from the Supreme Court, Kings County (Lewis, J.).
Ordered that the order is affirmed.
A defendant who has exhausted direct appeal and subsequently seeks to raise a Rosario claim (People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) by way of a CPL 440.10 motion must show that actual, ascertainable prejudice resulted from the prosecution's failure to turn over Rosario material (see, People v. Jackson, 78 N.Y.2d 638, 641, 649). After the defendant was convicted of robbery in the first degree for taking the complainant's car and wallet at gunpoint, he obtained two police reports which had not been provided by the People prior to trial. The reports were written by a detective who did not witness the robbery or testify at trial. The first concerned an interview with the complainant and some of the information in that report was inconsistent with certain trial testimony by the complainant and a police officer. These inconsistencies were sufficient to sustain the defendant's burden of demonstrating that there was a reasonable possibility that the failure to disclose the first of these police reports contributed to the jury verdict (see, People v. Jackson, 78 N.Y.2d, at 649, supra). Thompson, J.P., Rosenblatt, Altman and Hart, JJ., concur.