
    The People of the State of New York, Appellant, v Dana Jones, Respondent.
    Argued October 12, 1987;
    decided November 25, 1987
    
      POINTS OF COUNSEL
    
      Robert M. Morgenthau, District Attorney (Mark Dwyer and Michael A. Schwartz of counsel), for appellant.
    
      Jennifer S. Brand and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant was convicted, after a jury trial, of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first and third degrees. After originally affirming his conviction (124 AD2d 1076), the Appellate Division unanimously granted defendant’s motion for reargument, vacated its prior order, reversed the judgment of conviction, and remanded the case for a new trial on the ground that the People violated the Rosario rule (see, People v Rosario, 9 NY2d 286; CPL 240.45 [1] [a]) and that the violation required reversal. A Justice of the Appellate Division granted the People leave to appeal. The sole issue is whether the prosecution’s total failure to deliver Rosario material to defense counsel as required by the rule is subject to harmless error analysis.

The undelivered items pertained to an important prosecution witness, one Takum Taza, an admitted former narcotics dealer who had become a paid confidential informant. The prosecution concededly violated Rosario in failing to turn over to defense counsel five pages of notes concerning Taza written by the trial assistant and a DEA-6 form containing an initial debriefing of Taza conducted by Detective Lawrence Gerhold. In its original affirmance the Appellate Division took the position, as does the concurring Judge, that, because defense counsel successfully impeached Taza with other damaging material in counsel’s possession, the "additional topics for impeaching [which the withheld items would have afforded] were, in context, simply cumulative, if not trivial” (128 AD2d 405, 406). The papers which the prosecutor held back would have revealed at least the following discrepancies in Taza’s trial testimony: that he had been arrested on a weapons charge; that, contrary to his testimony, he had been fired from his last job as a taxicab driver for embezzlement, and that he actually sold 2 Vi to 5 times more than the quantity of drugs which he claimed in his trial testimony to have sold.

The Rosario rule, we have repeatedly said, is founded on this court’s firm conviction that "a right sense of justice entitles the defense to examine a witness’ prior statement, whether or not it varies from his testimony on the stand” (People v Rosario, supra, at 289; see, People v Ranghelle, 69 NY2d 56, 62; People v Perez, 65 NY2d 154, 158). As we stated in People v Perez (supra, at 158), "such statements are valuable not only as a source of contradictions, and * * * no one is better equipped or motivated than defense counsel to determine how they may be useful to the defense [citation omitted]”. In People v Consolazio (40 NY2d 446, 454), we emphasized that "a failure to turn over Rosario material may not be excused on the ground that such material would have been of limited or of no use to the defense, or that a witness’ prior statements were totally consistent with his testimony at trial” and that "consideration of the significance of the content or substance of a witness’ prior statements [cannot] result in a finding of harmless error.” The rule is simple and unequivocal: if the People are in possession of a statement of their own prospective witness relating to the subject matter of that witness’ testimony, defense counsel must, in fairness, be given a copy because ordinarily counsel would have no knowledge of it and no other means of obtaining it.

Nothing about this case persuades us that our long-standing rulings, that defense counsel "is in a far better position [than the court or the prosecutor] to appraise the value of a witness’ pretrial statements for impeachment purposes” (People v Rosario, supra, at 290) and that the ultimate appraisal of the material’s usefulness must be made by defense counsel, are incorrect or not essential for achieving the fundamental objective underlying Rosario — " 'to afford the defendant a fair opportunity to cross-examine the People’s witnesses at trial’ ” (People v Perez, supra, at 158, quoting People v Poole, 48 NY2d 144, 149).

In People v Consolazio (supra), People v Perez (supra) and People v Ranghelle (supra), we concluded that given the nature of a Rosario violation, harmless error cannot be applied. We reject the contention of the concurring Judge and the People that the particular circumstances of this case demonstrate that we should overrule these decisions and hold that the error was harmless because, in their opinion, the nondisclosure would have been of limited impeachment value — an opinion necessarily based on speculation as to what use defense counsel might have put them. Nor are Consolazio, Perez, and Ranghelle, which the concurrer would have us overrule as "three errant footsteps”, in any respect like the precedents rejected in People v Hobson (39 NY2d 479). Here, the decisions which are criticized are separate, full opinions, written for the unanimous court by three different members. The three decisions overruled in People v Hobson (supra, at 486) — People v Wooden (31 NY2d 753), People v Lopez (28 NY2d 23, cert denied 404 US 840), and People v Robles (27 NY2d 155) — had themselves overturned previously established case law and had temporarily reversed the continuing evolution of our right to counsel rule (see, People v Hobson, supra, at 483-484). By contrast, the Consolazio, Perez, and Ranghelle decisions are consistent with prior case law (see, People v Consolazio, supra, at 454) and are part of this court’s efforts at careful development of a State standard which, while fair to the prosecution, accords to the defendant a degree of protection commensurate with the importance of Rosario rights.

Applying a harmless error analysis to a Rosario violation would, as with any error, require us to consider two discrete factors: "the quantum and nature of proof of the defendant’s guilt if the error in question were to be wholly excised”, and "the causal effect which it is judged that the particular error may nonetheless have had on the actual verdict” (see, People v Crimmins, 36 NY2d 230, 240). The nature and purpose of Rosario make such analysis impossible.

In Rosario, we emphasized that statements of prosecution witnesses are important not just as a source of contradictions, but that "[e]ven statements seemingly in harmony with [trial] testimony may contain matter which will prove helpful on cross-examination. They may reflect a witness’ bias, for instance, or otherwise supply the defendant with knowledge essential to the neutralization of the damaging testimony of the witness which might, perhaps, turn the scales in his favor. Shades of meaning, stress, additions or omissions may be found which will place the witness’ answers upon direct examination in an entirely different light” (9 NY2d 286, 289, supra). It is defense counsel alone who has the responsibility for making the strategic judgments and doing the careful preparation required for planning and executing an effective cross-examination of the People’s witnesses and deciding whether and how to use the statements. When, as a result of the prosecutor’s violation of the Rosario rule, defense counsel has been deprived of material of which he or she is unaware or cannot otherwise obtain, there is no way, short of speculation, of determining how it might have been used or how its denial to counsel might have damaged defendant’s case. Such speculation would, of course, undermine the very basis of our prior decisions — that even "a judge’s impartial determination as to what portions may be useful to the defense, is no substitute for the single-minded devotion of counsel for the accused” (People v Perez, supra, at 160; see, People v Novoa, 70 NY2d 490, 499; People v Rosario, supra, at 290).

It is this inability of a reviewing court, to ascertain how defense counsel might have employed the withheld material, that distinguishes cases involving Rosario violations from cases involving other errors where the application of harmless error analysis is appropriate. Where the case involves prosecutorial misconduct, erroneous evidentiary rulings, misbehavior of a juror, improper comments during summation, or other such errors, the appellate court can review the record to determine, first, the existence of error, and then, if error is found, to assess the strength and persuasiveness of the admissible evidence of guilt and the probable effect, if any, of the error on the fact finder’s decision. Evaluating damage caused by a Rosario violation, by contrast, necessarily depends on a factor which is not in the record and which cannot be known —the operation of defense counsel’s mind and what different course might have been pursued if he had possessed the material.

Likewise, we reject the People’s contention, and the implication in the Appellate Division memorandum, that People v Ranghelle (supra, at 63) was a departure from the existing rule and should be overruled. In Ranghelle, we held that when, as here, the prosecution’s violation of the rule is not delay in compliance, but a complete failure to deliver the items, the violation constitutes per se error requiring reversal, and good faith or inadvertence on the part of the prosecutor is of no moment. In this holding, Ranghelle is no more than a logical application of the rule established in People v Rosario (supra) and carried forward in People v Consolazio (supra), People v Poole (supra), and People v Perez (supra). To add a good-faith exception to this settled rule, as the People and the concurrer suggest, would frustrate the very purpose and underlying policy considerations of the rule. The focus of Rosario is on fairness to defendant — not on the conduct or motives of the prosecutor. If Rosario material is denied the defendant, he has been deprived of what he should have. It matters not that the denial may have been inadvertent or immaterial.

Accordingly, the order of the Appellate Division should be affirmed.

Bellacosa, J.

(concurring). I concur only out of respect for the doctrine of stare decisis (see, Simpson v Loehmann, 21 NY2d 305, 314 [Breitel, J., concurring]). The recently declared coup de grace that failure to turn over Rosario (9 NY2d 286) material "constitutes per se error requiring that the conviction be reversed” (People v Ranghelle, 69 NY2d 56, 63), growing out of People v Consolazio (40 NY2d 446) and People v Perez (65 NY2d 154), parallels, in my view, the three errant footsteps identified in People v Hobson (39 NY2d 479, 485). Yet, the court persists and I am bound.

The record in this case reveals that documents containing statements of a prosecution witness, which the prosecutor either did not know of or regarded as attorney work product, were not disclosed to the defense pursuant to Rosario. Following conviction, the defense learned of the existence of these materials and moved to set aside the verdict. The trial court denied the motion based upon a record establishing that the statements were relevant only to the credibility of one witness who was, in any event, significantly impeached on cross-examination; that the statements would have had little, if any, effect on the substance of the witness’ testimony which was cumulative in all major respects with the testimony of an undercover police officer; and that the records were duplicative or cumulative to substantial other material properly turned over. In stark contrast to the de minimis nature of the undisclosed material, the People did provide the defense with defendant’s arrest record; the subject arrest report; personal history forms on defendant, a codefendant and this witness; Grand Jury minutes from this case; Grand Jury minutes from a similar case where the witness testified; a tape recording of the sale in this case; the witness’ own report of the sale here; a special agent’s report regarding the sale; a recommendation for dismissal in an unrelated case based on this witness’ poor credibility; two documents from an unrelated prosecution that contained inconsistent statements by this witness; and, the laboratory analysis report from this sale. The Appellate Division originally affirmed the conviction, without opinion (People v Jones, 124 AD2d 1076).

Following the decision in People v Ranghelle (69 NY2d 56, supra), the Appellate Division granted reargument, stating that "there is substantial support for the proposition that the People’s nondisclosure here was truly harmless”, adding that its initial affirmance was based upon the view that the non-disclosed impeachment materials "were, in context, simply cumulative, if not trivial” (People v Jones, 128 AD2d 405, 406). However, compelled by Ranghelle’s per se error rule which requires reversal for any and all Rosario turnover lapses, the Appellate Division vacated its earlier order, reversed the conviction and ordered a new trial.

Ironically, in Rosario itself, this court held that the People are required to disclose all prior statements of its witnesses based on a "right sense of justice” (9 NY2d 286, 289, supra). Judge Fuld wisely concluded, however, in that capital case affirming a conviction for murder in the first degree: "This court is exceeding slow to disregard error as harmless under section 542 of the Code of Criminal Procedure, particularly in a capital case. However in the one before us, we are as convinced as judges may ever be, in view of the overwhelming proof of guilt and the absence of any real inconsistency between prior statement and trial testimony, that the jury would not have decided the case differently even if defense counsel had had the use of the statements in question. In other words, it may not be said that any substantial right of the appellant was prejudiced by the trial court’s erroneous ruling” (id., at 291). Decisions subsequent to Rosario continued to apply harmless error analysis to Rosario violations (see, People v Hawa, 13 NY2d 718; People v Fasano, 11 NY2d 436; People v Pereira, 11 NY2d 784; People v Hernandez, 10 NY2d 774; People v Turner, 10 NY2d 839; People v Hurst, 10 NY2d 939).

People v Consolazio (40 NY2d 446, supra), while noting that Rosario’s harmless error component would no longer be applied to trials after Rosario, nevertheless neutralized the error in that case on its own harmless error-like rationale without invoking the phrase. People v Perez (65 NY2d 154, supra) and People v Ranghelle (69 NY2d 56, supra) completed the detour from the harmless error portion of People v Rosario (9 NY2d 286, supra).

The new per se error rule has elevated the consequences of these nonconstitutional Rosario violations to a level higher than a host of constitutional errors to which harmless error analysis applies (see, Rose v Clark, 478 US 570, 106 S Ct 3101, 3107 [instruction that impermissibly shifted the burden of proof on malice], citing Rushen v Spain, 464 US 114, 119 [denial of right to be present at trial]; United States v Hasting, 461 US 499, 508-509 [improper comment on defendant’s failure to testify]; Moore v Illinois, 434 US 220, 232 [admission of witness identification obtained in violation of right to counsel]; Milton v Wainwright, 407 US 371 [admission of confession obtained in violation of right to counsel]; Chambers v Maroney, 399 US 42, 52-53 [admission of evidence obtained in violation of the 4th Amendment]). This court’s new rule prohibits attempts by the courts to "determine whether any prejudice accrued to the defense”, and declares "the People’s good-faith effort to locate, identify, and discover all Rosario material does not excuse their failure to produce” (People v Ranghelle, 69 NY2d 56, 63, supra).

As the People observe in their brief, no other jurisdiction has a Ranghelle-type rule. Indeed, the principle enunciated in Ranghelle is analogous to the notorious Exchequer rule from the courts of England in 1830, which was recognized at one time by a majority of jurisdictions in this country. This rule created a per se right to a new trial for the defendant upon an erroneous evidentiary ruling, regardless of how insignificant (1 Wigmore, Evidence § 21, at 884-888 [Tillers rev 1983]). The rule was criticized as having "done more than any other one rule of law to increase the delay and expense of litigation, to encourage defiant criminality and oppression, and to foster the spirit of litigious gambling * * * Just so long as an erroneous ruling on evidence, however trifling, is described by the highest judges (and in many courts it habitually is) as 'working a reversal’, just so long will the reproach of technicality and futility mark our litigation” (1 Wigmore, Evidence § 21, op. cit, at 891). Of course, that rule has since been abandoned almost everywhere. But, we now have our own modern version.

A concern, with a coincidental and ironical twist, is that People v Ranghelle (supra), People v Perez (65 NY2d 154, supra), and to a lesser extent People v Consolazio (40 NY2d 446 [per Jones, J.], supra), even skew away from People v Crimmins (36 NY2d 230 [per Jones, J.]) in which Rosario was cited as an example of a nonconstitutional issue to which harmless error analysis applied (id., at 240).

Thus, good faith, unintentional and trivial lapses by the People in failing to disclose even de minimis pretrial material, inevitably result in reversal by adherence to an important rule taken now to an extreme (see, People v Havelka, 45 NY2d 636, 642). Notably, the court charts this course with respect to an aspect of the trial collateral, albeit important, to guilt or innocence — credibility. It rules that no quantum of compliance, save absolute, will be tolerated.

This relatively new absolute rule even blinks the legislative direction contained in CPL 470.05 (1) (the successor to Code of Criminal Procedure § 542 expressly adhered to in Rosario) that "[a]n appellate court must determine an appeal without regard to technical errors or defects which do not affect the substantial rights of the parties”. It must be supposed that the court overrides the statutory prescription by the fiat that all Rosario errors affect "substantial rights” because the court says so. Since the court is the final word, that may be so, even if it is also tautological. The finding in both courts below that the particular nondisclosure was truly harmless, merely duplicative and trivial, accents the extravagance of a per se rule made by a fallible institution which tolerates no imperfection in the law enforcement authorities whose conduct they govern. While the mission of the courts is to render justice, the "right sense of justice” referred to in Rosario itself implies an evenhandedness, not the imbalance created by a per se rule of this kind.

There should be no mistake concerning my fundamental and strong support for the Rosario rule and its importance in fairness and in adversarial advocacy affecting criminal prosecutions. Thus, if in this case there were the slightest hint of prosecutorial manipulation, advantage-seeking, lack of good faith, or significant prejudice to defendant’s rights; if there were not a reasonable explanation and excuse; and if this prosecutorial lapse were, even on an instant replay, deemed to have contextually, potentially and prejudicially affected the outcome and the fairness of the procedures affecting this defendant’s trial rights, then I would unqualifiedly join in undoing the conviction. In any of those instances, the entire law enforcement chain must maintain a completely clean act and Rosario is a powerful prophylaxis to that end. But none of these supposed things are present in this case and won’t be in many cases yet to come. Indeed, the opposite is true. Yet, the court has uprooted the Rosario foundation — fairness—and has sown in its place a test of perfection. "[T]aking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee” (United States v Hasting, 461 US 499, 508-509, supra).

A last observation of practical consequences is necessary. The new per se error rule unavoidably plants an uncertainty into every tried criminal case. It is a law enforcer’s nightmare and a perpetrator’s delight. Insofar as the rule is not constitutionally rooted, I believe it would be useful for the Legislature to consider a specification in CPL 470.05 and article 240, especially CPL 240.20 and 240.45, overcoming the per se-ness of this exalted court-made rule.

I close as I opened. The court conclusively adheres here to its per se rule so I join in the result only, having stated these separate views (see, Simpson v Loehmann, 21 NY2d 305, supra).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Titone concur with Judge Hancock, Jr.; Judge Bellacosa concurs in result in a separate opinion.

Order affirmed. 
      
      . The Rosario rule was codified in CPL 240.45 (1) (a). CPL 240.45 states:
      "1. After the jury has been sworn and before the prosecutor’s opening address, or in the case of a single judge trial after commencement and before submission of evidence, the prosecutor shall, subject to a protective order, make available to the defendant:
      "(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness’s testimony.”
     
      
      . Two other items were not turned over which are arguably Rosario material. In light of our holding that reversal is required for failure to turn over the two items which the People concede are Rosario material, we need not decide whether the other items were also improperly withheld.
     
      
      . Despite the suggestion of the concurring Judge that the material in question is duplicative of other material previously turned over by the People (see, concurring opn, at 554, 556), the People do not contend that the material is duplicative. Duplications are, of course, an exception to the Rosario rule (People v Ranghelle, 69 NY2d 56, 63; People v Consolazio, 40 NY2d 446, 454).
     
      
      . The assumption on which the concurrer and the People would base harmless error here — that the withheld Rosario material was of only "de minimis” or "minimal” value — is illustrative. Whether this assumption is valid or whether, as defendant contends, the five pages of notes concerning, among other things, Taza’s drug dealing and the loss of his job for embezzlement would have constituted "valuable impeachment material” is beside the point. The significant fact is that the conclusion that the information was of no value must necessarily be founded on sheer speculation as to what might have occurred and matters not in the record: i.e., the questions counsel might have asked or avoided asking, how the witness might have answered, and how such differences in the testimony might have affected the decision of the jury.
     