
    The People of the State of New York, Respondent, v Lawrence Fishman, Appellant.
    Argued May 25, 1988;
    decided June 30, 1988
    
      APPEARANCES OF COUNSEL
    
      Steven G. Legum for appellant.
    
      Robert M. Morgenthau, District Attorney (Eleanor J. Ostrow and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of attempted murder and conspiracy for his involvement in an unsuccessful plot to kill his wife. Defendant agreed to pay Jose Lopez and Fernando Castro $25,000 to kill her and on August 13, 1985, pursuant to that agreement, Lopez shot her several times.

On March 7, 1986, two weeks before commencement of defendant’s trial, Castro pleaded guilty to conspiracy for his involvement in the murder plot. On March 26, 1986, he was called as a prosecution witness at defendant’s trial; at that time, defense counsel requested production of Castro’s plea proceeding minutes, claiming that they constituted Rosario material. The prosecutor responded that he had ordered the minutes from the court stenographer, but had not received them, and that the minutes were a matter of public record. The trial court denied defense counsel’s request, ruling that the plea minutes, which counsel could obtain at any time, were not Rosario material. On appeal, defendant renews his argument that the minutes constituted Rosario material which the People were obligated to produce. We disagree.

The Rosario rule has no application in the circumstances of this case, where untranscribed plea minutes of a potential prosecution witness have been ordered but not received by the prosecution. Having had no immediate access of their own to the statements (contrast, People v Ranghelle, 69 NY2d 56, 64), the People cannot be held responsible for a failure to turn them over to defendant.

We cannot agree with the new, boundless reading of CPL 240.45 proposed by the dissent; nothing in the legislative history points to such a legislative intention. As for the dissent’s views regarding "sandbagging” (dissent, at 888), the focus of this appeal is Rosario; during the colloquy before the trial court — when defendant preserved his objection for our review — not even defendant made the arguments now suggested by the dissent as a basis for reversing this conviction.

To the extent they have been preserved, defendant’s remaining contentions are without merit.

Titone, J.

(dissenting). The majority holds that "untranscribed plea minutes of a potential prosecution witness [which] have been ordered but not received by the prosecution” do not fall within the scope of the Rosario rule. Because I believe that this holding is inconsistent with the express language and spirit of CPL 240.45 (1), I respectfully dissent.

On March 7, 1986, one of defendant’s accomplices, Fernando Castro, pleaded guilty to conspiracy in exchange for his testimony against defendant at his upcoming trial for attempted murder. The prosecution did not inform defendant of this fact until March 20, the day before his trial began. At that time, the prosecutor told defendant’s counsel that Castro "might” testify at trial. During his opening statement, the prosecutor stated that Castro would testify. When defense counsel requested that the prosecution provide him with a copy of the plea minutes in order to effectively cross-examine Castro the People responded that the minutes were as yet untranscribed. The trial court, after noting that both the prosecution and the defense had equal access to the transcript, concluded that the prosecution had no obligation to provide defendant with the minutes under People v Rosario (9 NY2d 286).

Initially, the Rosario rule requiring the People to provide the defendant with a witness’ prior statements was a judicially created doctrine designed to enhance the fairness of criminal proceedings. However, the Legislature subsequently enacted CPL 240.45 (1) (a), which provides: "After the jury has been sworn and before the prosecutor’s opening address * * * the prosecutor shall, subject to a protective order, make available to the defendant * * * [a]ny written or recorded statement, including any testimony before a grand jury * * * 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.” The majority apparently takes the position that this statute was merely a codification of the Rosario rule affording a defendant no greater rights than does our case law. However, the language and legislative history of CPL 240.45 (1) (a) compel a contrary conclusion.

CPL 240.45 (1) (a) explicitly requires that any written or recorded statement of a person whom the prosecutor intends to call as a witness be made available to the defendant after the jury is sworn and before the prosecutor’s opening address. On its face, the statute requires that the People provide defendant with a statement embodied in the plea minutes of an accomplice, where the People call the accomplice as a witness. The legislative history of CPL 240.45 indicates that it was designed to reduce the element of surprise, with its inherent unfairness, in criminal trials, as well as to broaden discovery. Indeed, the goal of this legislation was to expand discovery in criminal cases beyond that provided for in Rosario. The statute demands fair play by both the prosecution and the defense, a goal that was not met here.

Unlike the case where the defendant seeks the victim’s personal account of the crime (see, People v Reedy, 70 NY2d 826, 827), the People in this case were active participants in the accomplice’s plea. In contrast, the defendant was not a participant and absent a notification by the prosecution, had no way of knowing that a plea was taken. The result of the failure to provide the transcript under these circumstances was that the defendant was subjected to the surprise and unfairness that the Legislature sought to prohibit by enacting CPL 240.45.

The majority relies on the fact that, unlike statements filed with police agencies (People v Ranghelle, 69 NY2d 56, 64), and Grand Jury testimony (see, CPL 240.45 [1] [a]), the plea minutes here were not in the control of the People (see, People v Reedy, 70 NY2d 826, 827, supra; People v Jones, 70 NY2d 547, 550). The determinative factor, however, is whether the statement might have been of use to the defense (People v Ranghelle, supra, at 64; see also, People v Rosario, supra, at 289).

Here, the People failed to inform defendant that Castro would testify until after the trial actually commenced. They then advised defendant that the minutes of Castro’s plea had not been transcribed. Finally, the People placed the burden on defendant to obtain the minutes. This course of conduct effectively "sandbagged” defendant. The People’s resources would have made all of this unnecessary and it was incumbent upon them to provide defendant with a transcribed copy of Castro’s plea.

Accordingly, I would reverse and remit for a new trial.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone dissents and votes to reverse in an opinion.

Order affirmed in a memorandum. 
      
       The chief sponsor of the bill stated that the statute "expands criminal discovery provisions for both the defense and prosecution” (Bill Jacket, L 1979, ch 412, Mem of Senator Stafford). The memorandum approving the bill states that it provides "expanded discovery for both the defense and prosecution in criminal cases”, that "[t]he element of surprise in criminal trials and its inherent unfairness, will be reduced”, and that the provision was "developed together with the Senate and Assembly Codes Committees and the Office of Court Administration, in consultation with the Criminal Justice Section of the State Bar Association, and the State District Attorneys’ Association among others” (Bill Jacket, L 1979, ch 412, Governor’s Approval Mem, 1979 McKinney’s Session Laws of NY, at 1801). A letter submitted by the District Attorneys’ Association agreed that the bill represents "a reasonable and balanced step forward in broadening pre-trial discovery” (Bill Jacket, L 1979, ch 412). Finally, a further memorandum in support of the bill indicated that "[t]he enactment of this measure would have a significant impact upon the criminal justice process. Trials would become fairer as the element of surprise is reduced” (Bill Jacket, L 1979, ch 412, Mem of Office of Court Administration, at 4, 1979 McKinney’s Session Laws of NY, at 1891).
     