Opinion
June 26, 1967
Judgment of the Supreme Court, Queens County, rendered December 13, 1962, convicting defendant of one count of burglary in the first degree and two counts of rape in the first degree, upon a jury verdict, reversed, on the law and the facts and in the interests of justice, and new trial ordered. At a post-conviction confession hearing held pursuant to order of this court ( People v. Boddie, 22 A.D.2d 926), certain police reports were introduced into evidence by the defense. These reports had not been introduced at the trial. There is nothing to show that the defense knew of the contents of these reports at the time of trial or that the prosecution fulfilled its duty to disclose them (see People v. Zimmerman, 10 N.Y.2d 430; People v. Fein, 18 N.Y.2d 162, 175, 177). The reports were in substantial conflict with the complainant's trial testimony and identification of defendant, as well as the trial testimony of the detective who authored them. If the jury had had the opportunity to examine these reports, the outcome of the trial might well have been materially altered. Therefore, the interests of justice require a reversal of the conviction and a new trial (Code Crim. Pro., §§ 527, 543). Another ground urged for reversal is the fact that defendant was convicted of two seemingly contradictory counts of rape. Defendant was indicted upon two counts of rape in the first degree. Both counts were submitted to the jury with a charge that they may find defendant guilty on either one or both counts. However, in this case a finding by the jury of facts supporting one of the counts would necessitate their rejecting the other count in that the two counts cannot be reconciled. Hence, the trial court should have charged only in the alternative. While this was error, it would not, standing alone, be prejudicial under the circumstances of the present case, since (a) sentence was suspended on both these counts, (b) the conviction on these two counts would be considered only one felony conviction for the purpose of a subsequent multiple felony sentence (Penal Law, § 1941) and (c) a suspended sentence cannot be a predicate for a third or fourth felony offender sentence ( People v. Shaw, 1 N.Y.2d 30). However, as we are granting a new trial on the other ground hereinbefore noted, we deem it advisable to note this error. Beldock, P.J., Ughetta, Rabin, Benjamin and Munder, JJ., concur.