Opinion
March 7, 1989
Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).
After trial, defendant submitted a motion to vacate his judgment of conviction pursuant to CPL 440.10, alleging, inter alia, that the People withheld evidence that an understanding was reached with witness Elaine Franklin to testify in this case in exchange for the dismissal of an indictment charging her with an unrelated robbery, and that notes of an interview with Ms. Franklin were not turned over to defendant prior to trial. In opposition to defendant's motion, the People merely stated that defendant failed to produce proof substantiating his allegations. The court summarily denied defendant's motion without a hearing.
It is well settled that the People have a duty to disclose an agreement with a witness. (See, People v. Cwikla, 46 N.Y.2d 434, 441; People v. Savvides, 1 N.Y.2d 554.) Hence, if an understanding were indeed reached between the People and Ms. Franklin, the People had a clear duty to apprise the defendant of this agreement. (See, Brady v. Maryland, 373 U.S. 83; People v. Novoa, 70 N.Y.2d 490, 496.) Moreover, a serious Rosario violation is suggested by defendant's allegation that the People failed to provide the defense with notes of interviews held with Ms. Franklin. (See, CPL 240.45 [a]; People v. Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, rearg denied 15 N.Y.2d 765.)
Upon review of the record, we conclude that the court below improvidently denied defendant's CPL 440.10 motion without affording him a hearing. Defendant's submission on the motion showed that Elaine Franklin had been arrested and identified as a participant in a robbery. The very fact that the indictment charging Ms. Franklin with that robbery was later dismissed strongly suggests that some arrangement had been made with her. If no arrangement had been made, proof of that fact could readily have been supplied by the People on the motion.
Accordingly, the consolidated appeals are held in abeyance and the matter is remanded for an evidentiary hearing on defendant's motion pursuant to CPL 440.10.
Concur — Murphy, P.J., Carro, Milonas and Ellerin, JJ.