
    The People of the State of New York, Appellant, v Erick Jackson, Also Known as Eric Knight, Respondent.
    Argued May 31, 1991;
    decided December 19, 1991
    
      POINTS OF COUNSEL
    
      Charles J. Hynes, District Attorney, Kings County (Michael Gore and Jay M. Cohen of counsel), for appellant.
    The trial court’s vacatur of judgment is not authorized by CPL 440.10 or by any other provision of law and should be reversed. (People v Rosario, 9 NY2d 286; People v Jackson, 142 Misc 2d 853; People v Crimmins, 38 NY2d 407; People v Novoa, 70 NY2d 490; People v Astle, 117 AD2d 382; People v D’Amico, 136 Misc 2d 16; People v Bachert, 69 NY2d 593; Matter of Lyons v Goldstein, 290 NY 19; People v Consolazio, 40 NY2d 446; People v Jones, 70 NY2d 547.)
    
      Stephen C. Glasser and Robert G. Sullivan for respondent.
    I. In light of this Court’s decisions in People v Novoa (70 NY2d 490 [1987]) and People v Jones (70 NY2d 547 [1987]), the court below correctly held as a matter of law that a Rosario violation discovered on a hearing pursuant to CPL 440.10 (held after the direct appeal process has been exhausted) was subject to the per se error rule. (People v Rosario, 9 NY2d 286; People v Poole, 48 NY2d 144; People v Goins, 73 NY2d 989; People v Consolazio, 40 NY2d 446, 433 US 914; People v Bell, 140 AD2d 937; People v Martinez, 71 NY2d 937; People v Ranghelle, 69 NY2d 56; People v Wahad, 158 AD2d 312, 75 NY2d 970.) II. The “Gary” and “Weininger” memoranda also established Brady violations which, along with other unresolved claims, need to be addressed by the trial court in the event that this Court were to reverse the court below vis-à-vis the Rosario issue.
    
      Robert M. Morgenthau, District Attorney, New York County (Mark Dwyer and Patrick J. Hynes of counsel), for New York County District Attorney, amicus curiae.
    
    Neither justice nor fairness would be served by application of the Ranghelle automatic reversal rule in the context of a collateral attack initiated many years after a sound judgment based on a fair trial has become final. (People v Rosario, 9 NY2d 286; People v Perez, 65 NY2d 154; People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56; People v Consolazio, 40 NY2d 446; People v Nixon, 21 NY2d 338; United States v Addonizio, 442 US 178; People v Chait, 7 AD2d 399, 6 NY2d 855; People v Mancuso, 141 Misc 2d 382; Kuhlmann v Wilson, 477 US 436.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Eleven years ago, the defendant Erick Jackson was convicted of six counts of felony murder and one count of second degree arson in connection with a fire at a Waldbaum’s supermarket in Brooklyn that tragically claimed the lives of six New York City firefighters. Three years after his direct appeal was exhausted, defendant brought a motion to vacate his conviction pursuant to CPL 440.10 based on the People’s failure to supply him with a memorandum that contained the statement of a prosecution witness. The defendant claims that this was Rosario material and, therefore, the People should have turned it over to defendant during the trial (see, People v Rosario, 9 NY2d 286, cert denied 368 US 866).

On this appeal, we revisit the cases that grew out of our decision in Rosario, cases in which we stated and refined a per se error rule that called for reversal whenever the prosecution completely failed to turn over Rosario material. In People v Consolazio (40 NY2d 446, 454), we first held that harmless error analysis was inappropriate when a defendant challenged the prosecution’s failure to turn over Rosario material. Since Consolazio, we have articulated the policy reasons for adopting a per se error rule for Rosario violations and have repeatedly reaffirmed our commitment to that rule (see, e.g., People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56; People v Perez, 65 NY2d 154).

In each of these cases, however, the defendant’s Rosario claim was the subject of a direct appeal from the judgment of conviction. Even People v Novoa (70 NY2d 490), in which the defendant’s Rosario claim was the subject of both direct appeal and a CPL 440.10 motion, was treated as a direct appeal for procedural purposes. We were not asked to consider at that time whether the per se error rule should be extended to apply to postconviction motions to vacate under CPL 440.10.

Thus, the question before the Court today is indeed a novel one. We must decide whether the per se error rule applies to Rosario claims raised on a CPL 440.10 motion after a defendant’s direct appeal has been completed. The only two subdivisions of CPL 440.10 that arguably touch upon Rosario violations both require a defendant to show that he was prejudiced by the conduct that is the subject of the motion.

In originally adopting the per se error rule, we balanced the rights of the defendant against the rights of society and arrived at a policy designed to foster the "right sense of justice” that had led this Court to fashion and impose the stringent discovery requirements that are at the heart of the Rosario decision. Here, however, the Legislature has already spoken and required defendants filing CPL 440.10 motions to make a showing of prejudice. Given the policy concerns underlying this prejudice requirement, including society’s interest in the finality of judgments, we conclude that prejudice cannot be assumed and must be articulated. Thus, we hold that a defendant who has exhausted direct appeal and who seeks to raise a Rosario claim by way of a CPL 440.10 motion will be required to make an actual showing that prejudice resulted from the prosecution’s failure to turn over Rosario material. Accordingly, we now reverse and remit.

L_

A detailed account of the events leading up to the defendant’s conviction for felony murder and arson is contained in this Court’s opinion disposing of defendant’s direct appeal from his judgment of conviction (65 NY2d 265). Since 1985, the year his conviction was affirmed, defendant has twice moved to have that conviction vacated pursuant to CPL 440.10. The first such motion, based on ineffective assistance of trial and appellate counsel, was denied by the trial court in 1986.

The motion at issue on this appeal was brought in July of 1988. The defendant again claimed on this motion that the representation provided by his trial attorney had been ineffective, and additionally claimed that he had been deprived of Brady material (Brady v Maryland, 373 US 83). The trial court notified the People and defense counsel that it would also treat the defendant’s motion as raising a claim for relief under Rosario. During the hearings on the motion, the People conceded that the defendant had not been given a memorandum that contained a synopsis of an interview with a fire marshal who later testified for the prosecution at trial. The People also acknowledged that the memorandum was not the duplicative equivalent of material that had been turned over to the defendant (see, e.g., People v Consolazio, supra, at 454). In a memorandum decision dated November 7, 1988, the Trial Judge granted defendant’s motion to vacate his judgment of conviction. Citing this Court’s decision in Novoa (supra), the Trial Judge rejected the People’s argument that the defendant needed to show that he had been prejudiced by the Rosario violation. The Appellate Division affirmed the trial court’s order, relying on language from Novoa, Jones, and Ranghelle (supra) for its conclusion that harmless error analysis was not appropriate with respect to a Rosario violation. A Judge of this Court granted the People’s motion for leave to appeal.

IL

Prior to our holding in Rosario, a defendant was permitted to inspect only those statements of prosecution witnesses that contained matter inconsistent with the testimony given by the witness on the stand (see, e.g., People v Walsh, 262 NY 140, 149). In Rosario, we concluded 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” (id., at 289). "As long as the statement relates to the subject matter of the witness’ testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination” (id., at 289). The Court reasoned that "single-minded counsel for the accused” was better able than the presiding Judge to assess the usefulness of witness statements for impeachment purposes (id., at 290). We acknowledged at that time that our decision "turn[ed] largely on policy considerations” (id., at 289). Thus, our characterization of this decision as policy based is not, as the dissent would suggest, a post hoc departure from reason and logic, but a reiteration of the rationale for the decision, in the very language used by the Rosario majority.

The per se error rule is not found in Rosario, however. In that case, the Court applied a harmless error analysis, looking to whether "there was a rational possibility that the jury would have reached a different verdict if the defense had been allowed the use of the witness’ prior statements” (id., at 291). The Court concluded that the violation at issue in Rosario was indeed harmless and affirmed the defendant’s judgment of conviction.

As noted above, this Court first applied the per se error rule in People v Consolazio (40 NY2d, at 454, supra). In People v Perez (supra), we explained our adherence to the per se error rule by looking to the policy considerations that had led to the Rosario decision. We noted that "[t]he essence of the Rosario requirement, that the prosecutor supply all of a witness’ statement or statements relating to his testimony, is that 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. Appellate judges have no advantage over trial judges in making such a determination” (People v Perez, supra, at 160).

We again applied the per se error rule in People v Ranghelle (supra) in which we refused to recognize a good-faith exception that would excuse the prosecution’s failure to turn over Rosario material (People v Ranghelle, supra, at 63). In People v Jones (supra), the People argued that Ranghelle was an illogical and aberrational decision that would wreak havoc on the criminal justice system of this State. In the face of this direct challenge to the line of per se error cases culminating in Ranghelle, we refused to cut back on our commitment to the per se error rule for Rosario claims. In Jones a majority of the Court stated that "[i]t 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” (People v Jones, supra, at 552).

At the same time as we stated the per se error rule and imposed stringent penalties on prosecutors who failed to comply with their Rosario obligations, we recognized certain commonsense limitations on the scope of those obligations. Thus, in People v Poole (48 NY2d 144), we refused to hold that the defendant had an unfettered right to inspect all of the documents contained in the prosecutor’s files in order to determine for himself whether any of the material would be useful. We stated that to allow unrestricted access to prosecution files would "extend the letter and spirit of Rosario and its progeny beyond its legitimate purpose — to afford the defendant a fair opportunity to use a witness’ prior relevant statements for impeachment purposes” (People v Poole, supra, at 149-150). And in Consolazio (supra), even as we applied the per se error rule for the first time, we held that it was not error for the prosecution to fail to turn over worksheets that were the "duplicative equivalents” of documents that were already turned over as Rosario material (People v Consolazio, supra, at 454).

Rosario is not based on the State or Federal Constitution. It is, in essence, a discovery rule, based on a deeply held belief that simple fairness requires the defendant to be supplied with prosecution reports and statements that could conceivably aid in the defense’s cross-examination of prosecution witnesses. As Rosario became more entrenched in the criminal jurisprudence of this State, we adopted a per se error rule that afforded the defendant’s cross-examination rights even greater protection and attached significant penalties to the failure to turn over Rosario material. Even if the failure was inadvertent and even if the prosecutor argued that the withheld material was trivial, the defendant was to receive a new trial.

Applying a per se error rule in the Rosario cases that reached this Court on direct appeal was thus a policy decision, grounded in our recognition that to permit harmless error analysis in Rosario cases was to speculate as to the uses to which Rosario material could have been put, something that was contrary to the spirit of fairness that animated the Rosario decision. We are now at another crucial point in the development of our Rosario case law. In this case, the normal appellate process was exhausted 6V2 years ago. The crime occurred 13 years ago. Because there is no time limit on the filing of CPL 440.10 motions, this set of facts is by no means aberrational. CPL 440.10 motions could conceivably be filed decades after direct appeal has been completed. Thus, we now confront new policy considerations and must again balance society’s interests against those of the defendant.

This time, however, we are not guided solely by the weight of our own precedent. The defendant is resting his challenge upon a statute, and we therefore direct our attention to the statutory language that maps out the scope of the remedy he seeks. CPL 440.10 does not contain a separate prong that is clearly applicable to Rosario cases. There are two that might arguably apply: the newly discovered evidence prong (CPL 440.10 [1] [g]) and the "[i]mproper and prejudicial conduct” prong (CPL 440.10 [1] [f]). Both of these paragraphs require some showing of prejudice before a defendant will be entitled to have a judgment of conviction vacated: CPL 440.10 (1) (f) by its very terms requires that the conduct at issue on the motion be "[i]mproper and prejudicial” and that "it * * * would have required a reversal of the judgment upon an appeal therefrom,” while CPL 440.10 (1) (g) requires that the newly discovered evidence be "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.”

We believe that Rosario claims are most appropriately raised under CPL 440.10 (1) (f), the "[i]mproper and prejudicial conduct” paragraph (cf., People v Howard, 127 AD2d 109, 118). We reach this conclusion for several reasons. First, it has been held that evidence that tends to impeach a trial witness’ testimony is not the sort of "newly discovered evidence” that would entitle a defendant to a new trial (see, e.g., People v Powell, 96 AD2d 610; People v Wood, 94 AD2d 849, 850). Yet the very purpose of the Rosario decision is to give defendants an opportunity to use relevant witness statements for impeachment purposes. Thus, in that Rosario material is accorded protection precisely because it can be used to impeach trial witnesses, prior precedent suggests that such material could never constitute the sort of newly discovered evidence that would entitle the defendant to a new trial.

Second, the Rosario decision is not grounded in the same policy concerns as the newly discovered evidence paragraph of CPL 440.10 (1), which is concerned primarily with the exculpatory value of the newly discovered material. Rosario material is treated differently not because it is exculpatory, but because basic fairness dictates that a defendant be given the opportunity to evaluate pretrial statements of prosecution witnesses for their impeachment value. Although fairness to the defendant obviously underlies both the Rosario decision and CPL 440.10 (1) (g), there are significant differences in the values sought to be advanced by the two.

Consequently, we believe that these claims are better raised under CPL 440.10 (1) (f), the paragraph applicable to improper and prejudicial conduct. The Rosario decision, presently codified at CPL 240.45 (1) (a), imposes a definite duty upon the prosecution to turn over pretrial statements of prosecution witnesses that relate to the subject matter of the witnesses’ testimony. Failure to comply with this duty, however inadvertent, violates both statutory and common-law mandates and is consequently improper.

To prevail under CPL 440.10 (1) (f), however, a defendant must do more than demonstrate that the conduct at issue was improper. The statute by its very terms affords a remedy only if the defendant’s trial was affected by conduct that was both improper and prejudicial. The statute compels an inquiry into the presence or absence of prejudice. This requirement is directly related to society’s interest in the finality of judgments. There is no time limit on the filing of CPL 440.10 motions. As time passes, evidence is misplaced, witnesses disappear and once vivid memories of a crime begin to fade into uncertainty. All of this has a profound effect upon the People’s ability to retry a defendant years after direct appeal has been exhausted. At common law, defendants seeking a writ of error coram nobis were required to demonstrate prejudice, and this requirement was based in part upon society’s interest in the finality of judgments (see generally, Fuld, The Writ of Error Coram Nobis, NYLJ, June 5, 1947, at 2212, col 1; People v Howard, 12 NY2d 65; see also, People v Wilkins, 28 NY2d 53; 18 Am Jur 2d, Coram Nobis, § 13, at 633). The Legislature carried the prejudice requirement forward when the common-law remedy was codified in CPL 440.10. Once the Legislature has established a remedy, the terms of the applicable statute control the scope of that remedy (see, e.g., People v Corso, 40 NY2d 578). Presumably, the Legislature, in balancing the competing policy concerns, including its own right sense of justice, recognized the need for defendants to receive their punishment, unless they were able to show that they were entitled to the statutory remedy and that they had been prejudiced by the trial error that was at issue in the motion to vacate.

It is for us, however, to look at the statutory requirement of prejudice and to determine the reading that this language should be given. In fulfilling our judicial function, we cannot by the force of our own precedent render the prejudice requirement a nullity. Nor can we ignore the underlying legislative purpose of that requirement.

In including a prejudice requirement in CPL 440.10 (1) (f), the Legislature was concerned about society’s interest in finality of judgments. We too recognize this interest is formidable. As we have already noted, the language of the statute contains no limitation on the time period during which such motions can be filed. Defendants can thus avail themselves of the statutory remedy many years after the normal appellate process has been completed. In that the passage of time greatly affects the People’s ability to retry a defendant, we think it would be imprudent to read the prejudice requirement out of the statute by taking the per se error rule and applying it in CPL 440.10 context. To assume prejudice without requiring the defendant to demonstrate actual prejudice would eviscerate the language of CPL 440.10 (1) (f) and the concern for finality that underlies this language.

We therefore conclude that Judges conducting CPL 440.10 hearings should not assume the existence of prejudice simply because the defendant has stated a Rosario claim. In fulfilling our duty as common-law Judges to interpret statutory language, we believe that a defendant raising a Rosario claim by way of a CPL 440.10 motion must make a showing of prejudice. We will not step in and cut off that inquiry. Neither our precedent nor our concern for fairness to the defendant requires that result.

We take issue with the dissent’s statement that our decision today "cannot be justified by statutory language, precedent or a priori logic” (dissenting opn, at 654-655). In assigning meaning to the term "prejudice” in the context of CPL 440.10 (1) (f) motions, we are guided by the legislative purpose behind the prejudice requirement and by our recognition that postconviction motions to vacate and direct appeal are procedurally and conceptually quite different. We refuse to concede that a series of cases, generated in a wholly distinct procedural posture, restrain our ability to think critically about the issues presented on this appeal. We are well aware that adherence to precedent is at the heart of common-law decision-making. However, we do not accept the dissent’s suggestion that the balance struck in the per se error cases controls the result in this case, in which statutory language, legislative history, and societal interests in finality — factors never before considered in the Rosario context — all dictate the opposite result.

This holding does not represent a de facto elimination of the per se error rule, as the dissent contends. In the 31 years since Rosario was decided, this case is the first before this Court to raise a Rosario violation in the context of a CPL 440.10 motion brought after direct appeal was completed. This suggests to us that applying the per se error rule up until the completion of the appellate process and applying the rule we articulate today thereafter will as a practical matter not affect the vast majority of defendants who raise Rosario claims.

In Rosario, Consolazio, Ranghelle and the other per se error cases, we struck a balance. We were not impelled by constitutional mandates to make the choices that we did. Rather, we were motivated by a desire to treat defendants fairly. Unlike the dissent, however, we believe that our decision today, striking a different balance, is indeed grounded in reason and logic. We have attempted to bring both to bear in our articulation of a rule that is fair to the defendant but that takes into account the nature of the collateral remedy and the interests implicated by that remedy. The existence of the Judge-made per se error rule does not permit us to subvert the language of CPL 440.10 (1) (f) with impunity. Ultimately, it is our responsibility as Judges to harmonize the common-law rule and the statutory remedy as far as practicable. This is what we seek to do today.

In light of our holding in this case, we now spell out the degree of prejudice that a defendant with a Rosario claim must show in order to prevail on a motion to vacate brought under CPL 440.10 (1) (f). Having reviewed Rosario and the per se error cases and looked for guidance to People v Vilardi (76 NY2d 67), we hold that a defendant who was deprived of Rosario material and who consequently seeks to vacate a conviction under CPL 440.10 (1) (f) must demonstrate a reasonable possibility that the failure to disclose the Rosario material contributed to the verdict.

We reach this conclusion for several reasons. First, it is the standard used by the majority in Rosario itself (id., at 291), and for that reason is certainly consistent with the policy considerations that first led this Court to implement the Rosario rule. Second, it is the standard that is currently in use for Brady material, where the prosecutor was placed on notice by a specific discovery request that the defendant considered the material important to the defense (see, People v Vilardi, supra, at 77). Thus, while a per se error rule will continue to apply to Rosario but not Brady claims on direct appeal, there will now be a certain congruence in the treatment of Rosario and Brady claims raised by way of CPL 440.10 motions after direct appeal has been exhausted. Finally, we conclude that this is the most equitable standard for ascertaining whether prejudice resulted from Rosario violations. Any other standard would create too great a disparity between the treatment of these claims on direct appeal, where a per se error rule continues to apply, and on postconviction motion, where, as we hold today, CPL 440.10 requires a finding that the defendant was prejudiced by the failure to turn over Rosario material.

In conclusion, we would like to emphasize that the per se error rule is still the law in this State when a Rosario claim is the subject of a direct appeal from a judgment of conviction. We continue to believe that defense counsel is in a far better position than the Trial Judge to determine the impeachment value of Rosario material. In addition, our holding in People v Novoa (70 NY2d 490, supra) establishes that where a Rosario claim is the subject of both a direct appeal and a postconviction motion brought under CPL 440.10, the per se error rule will also apply. Where direct appeal has been exhausted, however, and the defendant seeks to vacate a judgment solely by way of a CPL 440.10 motion, the terms of that statute control. The interest in finality implicated by CPL 440.10 motions, has led us to conclude that defendants must be prepared to show that actual, ascertainable prejudice resulted from the Rosario violation.

The dissent terms the procedural distinctions we draw today "arbitrary” (dissenting opn, at 656). We, by contrast, view them as part of an effort to balance the rights of the defendant against the interests of society. The dissent is correct to point out that we are greatly concerned about the possibility that significant periods of time may elapse between the affirmance of a defendant’s conviction on appeal and the filing of a CPL 440.10 motion. But this does not in any way diminish our commitment to treating defendants fairly. Thus, our decision to treat CPL 440.10 motions differently depending upon whether the defendant has exhausted direct review is not a product of whim or caprice. Rather, it is a reflection of our ongoing effort to accommodate both society’s interest in finality and the defendant’s right to examine impeachment evidence. We have endeavored to fashion a rule that addressed our concerns regarding the infinite duration of the CPL 440.10 remedy without undermining the fairness concerns that are at the core of Rosario. Contrary to the dissent, we believe that our holding today achieves that result.

Because both the trial court and the Appellate Division determined that the per se error rule applied to the defendant’s Rosario claim, he was not required to show that he had been prejudiced by the Rosario violation. Therefore, defendant is entitled to a CPL 440.10 hearing in order to permit defendant to establish that there was a reasonable possibility that the failure to turn over Rosario material contributed to the verdict against him. In addition, he should be permitted to address those claims that were not reached below as a result of the disposition of his Rosario claim.

Accordingly, the order of the Appellate Division should be reversed, and the case remitted to Supreme Court, Kings County, for further proceedings in accordance with the opinion.

Titone, J.

(dissenting). After reading the majority’s opinion, one is left with the impression that rules of law are merely matters of policy preferences to be invoked, modified or simply ignored when their consequence are, in the eyes of four members of this Court, inconvenient or undesirable. Indeed, the word "policy” appears no less than 11 times in the majority’s opinion and at least seven references are made to balancing society’s and defendant’s interests, as though the mere repetition of those concepts alone has the power to persuade. What constitutes good policy, however, is within the eyes of the beholder. Since the practical effect of the Court’s decision here will be to make relief for Rosario violations virtually unavailable in postconviction proceedings, the result can hardly be characterized as "equitable” or good policy from the viewpoint of an aggrieved defendant unfortunate enough to be relegated to such proceedings (see, majority opn, at 649). Further, despite the majority’s efforts to place the burden of responsibility for its policy choice on the language of the applicable statute, there is nothing in the language of CPL 440.10 (1) (f) that requires such a dramatic departure from the clear rule that has governed the disposition of Rosario claims in direct appeals for the past 15 years (see, People v Jones, 70 NY2d 547, 553; People v Novoa, 70 NY2d 490, 499; People v Ranghelle, 69 NY2d 56, 63; People v Perez, 65 NY2d 154, 160; People v Consolazio, 40 NY2d 446, 454, cert denied 433 US 914). To the contrary, the logic and values that inform that rule compel its application in CPL 440.10 proceedings. Accordingly, I dissent.

I.

In People v Rosario (9 NY2d 286, 289), this Court held that "a right sense of justice” requires that before cross-examinatian the People must turn over to the defense the pretrial statements of prosecution witnesses pertaining to the subject matter of their testimony. Fifteen years later, in People v Consolazio (40 NY2d, at 454, supra), we made clear that a failure on the part of the People to disclose such material could not "be excused on the ground that [it] would have been of limited or of no use to the defense.”

To read the majority’s opinion, one would think that this rule was nothing more than a bit of judicial legislation grounded in policy choice rather than logic and reason (see, majority opn, at 641 ["(i)n originally adopting the per se error rule, we balanced the rights of the defendant against the rights of society and arrived at a policy designed to foster” the Rosario goals]; id., at 644-645 ["(a)pplying a per se error rule * * * was * * * a policy decision”]; see also, id., at 643 ["our decision 'turn(ed) largely on policy considerations’ ”]). However, nothing could be further from the truth. As the Chief Judge himself explained in People v Perez (65 NY2d, at 160, supra), the "essence of the Rosario requirement * * * is that a judge’s impartial determination as to what portions [of a witness’s pretrial statements] may be useful to the defense, is no substitute for the single-minded devotion of counsel for the accused.” For that reason, the Perez Court concluded, a harmless error analysis based on the relative probative worth of the withheld evidence is inappropriate (accord, People v Ranghelle, 69 NY2d 56, supra).

The subject was once again explored in People Jones (70 NY2d 547, supra), in which this Court squarely and firmly rejected an argument by the People that the Consolazio-Perez-Ranghelle line of cases should be overruled. Echoing and expanding upon the analysis of the Perez Court, we stated that "[t]he nature and purpose of Rosario” make it "impossible” to apply traditional harmless error analysis based on the quantum and nature of the People’s proof and the causal effect of the error on the outcome (70 NY2d, at 551). We explained: "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” (id., at 552). Since the Jones Court believed that such speculation would "undermine the very basis of our prior decisions,” it declined to apply a harmless error analysis based on the evidentiary value of the undisclosed material (id., at 552; see also, People v Novoa, 70 NY2d, at 499, supra).

A bare four-Judge majority has chosen a different conclusion in this case, not because the procedural posture of CPL 440.10 proceedings makes the harmless error inquiry any less "impossible,” but rather because, in its view, a showing of particularized prejudice is specifically required by the language of the applicable provision, CPL 440.10 (1) (f). In this regard, however, the present majority’s rationale is nothing more than an exercise in result-directed statutory construction that simply does not withstand scrutiny.

II.

The term "prejudice],” as used in CPL 440.10 (1) (f) and elsewhere in the Criminal Procedure Law, is fraught with ambiguity. It is a word that has no single meaning; rather, it takes on whatever significance logic and reason would give it in the context in which it is being used. Thus, in cases involving errors in the admission or exclusion of evidence, the term "prejudice” may fairly be used to refer to the probable effect of the error on the outcome, and the degree of "prejudice” may be assessed by considering "the nature and the inherent probative worth of the evidence” (People v Crimmins, 36 NY2d 230, 241). In cases involving other classes of errors, however, the nature and quantum of proof is irrelevant in determining what constitutes "prejudice” (see, People v Felder, 47 NY2d 287, 296), and the inquiry requires a more subtle analysis.

For example, errors in the trial court’s closing instructions that deprive the defendant of his right to jury consideration of the crime elements are deemed prejudicial " '[n]o matter how conclusive the evidence’ ” (People v Lewis, 64 NY2d 1031, 1032, quoting People v Walker, 198 NY 329, 334). Similarly, errors affecting the jury’s deliberative process have been held prejudicial to the extent they tend to "compromise” that process, without regard to the strength of the People’s case (see, e.g., People v Brown, 48 NY2d 388, 395). Cases involving deprivations of the basic right to representation by counsel are also generally not subjected to traditional harmless error analysis (see, e.g., People v Hilliard, 73 NY2d 584; People v Felder, supra).

People v O’Rama (78 NY2d 270, 279-280) is particularly pertinent in this context. In that case, the trial court had violated its statutory duty to notify defense counsel of the precise contents of a juror inquiry (see, CPL 310.30). We concluded that reversal was required notwithstanding the defendant’s inability to show "specific prejudice” because the court’s error had deprived defendant of "the opportunity to have input, through counsel * * * into the court’s response to an important, substantive juror inquiry” and that, as a consequence, the error was "inherently prejudicial” (78 NY2d, at 279-280). Significantly, the opinion in O’Rama drew an analogy to the recent Rosario cases in which reversal was held required without regard to a showing of specific prejudice (78 NY2d, at 279-280, citing People v Jones, supra; People v Perez, supra).

The teaching of O’Rama and the other above-cited cases is that certain kinds of errors occurring during trial are intrinsically prejudicial because they either detract from the process or impair the defendant’s ability to present a defense. In such instances, a so-called "per se” rule of reversal is applied. The use. of the term "per se” in this context does not denote a complete absence of prejudice; rather, it represents a shorthand way of saying that errors within that class are prejudicial by their very nature and that, accordingly, nothing further need be shown to compel reversal.

That is precisely what this Court had in mind when it applied a "per se” rule of reversal in Jones, Perez, Consolazio, Novoa and Ranghelle. When a prosecutor fails to disclose Rosario material during trial, the defense is deprived of the opportunity to make the necessary strategic judgments and do "the careful preparation required for planning and executing an effective cross-examination” (People v Jones, 70 NY2d, at 552, supra). Further, the defense has been prevented from exploring potential areas of weakness in the prosecution’s evidence. This deprivation goes to the heart of counsel’s ability to provide a meaningful defense and, consequently, is "prejudicial” in the same sense that the error in People v O’Rama (supra, 279-280) was prejudicial to the defense in that case.

Thus, contrary to the majority’s central argument, CPL 440.10 (1) (f)’s requirement of "prejudice” does not provide a justification for abandoning in this context the Rosario per se rule that has been applied for the past 15 years in direct appeals. Indeed, if "prejudice” had not been present in Jones, Ranghelle, Perez and Consolazio, we would have been guilty of exceeding our powers as an appellate court, since CPL 470.05 (1), which applies to direct appeals, dictates that we determine appeals "without regard to technical errors or defects which do not affect the substantial rights of the parties” (emphasis supplied). Surely, the majority cannot seriously suggest that the term "prejudice]” in CPL 440.10 (1) (f) means something different from the impairment of the "substantial rights” of the accused that CPL 470.05 (1) requires.

In the final analysis, the majority’s choice to réach a different result under CPL 440.10 (1) (f) than under CPL 470.05 (1) cannot be justified by statutory language, precedent or a priori logic. Thus, in reality, it must be premised solely on what the majority terms a choice of "policy” — the majority’s current code word for its four members’ unwillingness to apply a well-settled rule of law in such a way as to produce vacaturs of previously settled criminal convictions. In my view, this choice is unsound and, indeed, indefensible.

III.

The majority’s policy choice is objectionable not only because it ignores recent and settled precedent, but also because it is so one-sided. The particularized prejudice standard that the majority has embraced requires a "reasonable possibility that the failure to disclose the Rosario material contributed to the verdict” (majority opn, at 649). The majority gives no particular reason for choosing this standard, other than its use in the original Rosario decision (9 NY2d 286, cert denied 368 US 866, supra) and its congruence with the rule now applied in New York in Brady violation cases (Brady v Maryland, 373 US 83; see, People v Vilardi, 76 NY2d 67). In view of the substantial differences between the goals and purposes of the Rosario and Brady rules, however, this congruence alone can hardly provide a sound basis for such a profound change in the law. And, the use of the standard in the original Rosario decision is certainly not a persuasive point, since that standard has long been superseded by the per se rule of reversal developed in Consolazio and its progeny.

Most significantly, the use of this standard, which was tailored for Brady cases, will, as a practical matter, eliminate the possibility of a remedy for most defendants who, through no fault of their own, do not discover Rosario violations until after sentence is imposed. The majority’s rule mandates an assessment of the factual significance of the undisclosed material in light of the admitted trial evidence. However, as stated in People v Jones (70 NY2d 547, 551-553, supra), it is simply impossible for a reviewing court to determine whether the outcome of a particular case may have been affected by the prosecution’s failure to turn over a pretrial statement of one of its witnesses (accord, People v Perez, 65 NY2d, at 160, supra). Indeed, the evidentiary value of Rosario material is often not even discernible to defense counsel until after he or she has had an opportunity to use it as a basis for cross-examination, since even the most seemingly innocuous material may open new avenues of impeachment that could not have been foreseen before the witness’s responses were heard. Thus, as the majority is well aware, the cases in which the requisite showing can be made will be few and far between. In fact, since the majority opinion does not even attempt to explain why the inquiry it mandates will be any more fair or any less "impossible” in postconviction proceedings than it would have been in the appeals in Perez (supra), Consolazio (supra), Ranghelle (supra) or Jones (supra), the conclusion is inescapable that the Court’s previously expressed concern for fairness in the adjudicative process has, at least in this context, been supplanted with a concern to protect existing convictions, particularly where the passage of time "affects the People’s ability to retry [the] defendant” (majority opn, at 647; see, id., at 646).

IV.

That the majority’s central concern lies with the age, rather than the underlying fairness, of the convictions challenged in this and similar cases is evident not only from its many explicit references to that consideration (see, majority opn, at 640, 645, 646, 647, 650), but also from the peculiar exception it has created for cases where the Rosario claim "is the subject of both a direct appeal and a postconviction motion brought under CPL 440.10” (majority opn, at 649). Presumably, this exception does not run afoul of the majority’s "policy” concerns because it implicates only the most recent convictions in the system, convictions which are vulnerable in any case as long as a direct appeal is pending.

The ostensible justification for recognizing what might otherwise appear to be an arbitrary "exception” is the authority of People v Novoa (70 NY2d 490, supra), in which, according to the majority, the Rosario claim "was the subject of both direct appeal and a CPL 440.10 motion” and "was treated as a direct appeal for procedural purposes” (majority opn, at 641; see also, id., at 649). This characterization of Novoa, however, reflects a fundamental misunderstanding of appellate procedure.

In fact, the material that formed the basis of the Rosario claim in Novoa was not discovered until more than a year after judgment was entered (see, 70 NY2d, at 494, supra). Accordingly, it was not part of the record on the direct appeal and could not have been considered on that appeal, absent a discretionary order by the Appellate Division to "expand” the record (cf., People v Perez, supra). Further, since the existence of the material was not known during the trial, there was neither a "protest” nor a judicial "ruling” on the record underlying the judgment and, thus, the Rosario claim presented no "question of law” for this Court to review on the direct appeal (see, CPL 470.05 [2]).

In truth, the only ruling on which this Court could have reversed in Novoa was the trial court’s order denying the convicted defendant’s postjudgment motion for relief following a full hearing (see, 70 NY2d, at 495-496, supra) — an order which was not cognizable on the direct appeal. Indeed, as its primary reason for reversing, the Novoa Court specifically cited its disagreement with the trial court’s analysis on the postjudgment motion. Accordingly, unless the Novoa Court was seriously mistaken in its appreciation of the procedural posture of the case before it, it simply cannot be said that the Rosario claim was either "the subject of [the] direct appeal” or "treated as a direct appeal for procedural purposes” (see, majority opn, at 641; see also, id., at 649).

When stripped of its supposed precedential support in Novoa, the exception that the majority has created for cases where the Rosario claim "is the subject of both a direct appeal and a postconviction motion” is exposed as an arbitrary and unrealistic attempt at expediency. It is arbitrary because it makes the availability of the per se reversal rule turn on the fortuity of whether the undisclosed Rosario material is discovered before or after the intermediate appellate court has heard and determined the direct appeal. It is unrealistic for the simple reason that, as discussed above, the procedural principles governing appeals make the existence of the conditions for the exception, at best, unlikely.

V.

Finally, if policy considerations are to be the touchstone, the Court should also consider the effect that its decision will have, on both the administration of the Rosario rule and on the behavior of prosecutors. Viewed against both of these yardsticks, the majority’s holding falls short.

First, by establishing a separate standard for reversal in CPL 440.10 cases, the majority has left little room for the Consolazio-Perez-Ranghelle-Jones per se rule of reversal to operate. In cases where the undisclosed Rosario material comes to light before the close of evidence, the error will likely be treated as a “mere delay” and appellate reversal will depend upon “whether the defense was substantially prejudiced” (People v Ranghelle, 69 NY2d, at 63, supra). In cases where the failure to disclose becomes apparent only after entry of judgment, the majority’s new rule will apply and reversal will also be contingent on a particularized showing of actual prejudice. Significantly, in such cases, the Rosario doctrine itself will have little utility, since a defendant who can meet the majority’s new test can, by definition, also obtain vacatur under the Brady-Vilardi standard, without regard to Rosario. What remains of the Consolazio-Perez-Ranghelle-Jones per se reversal rule is, then, its availability in that narrow category of cases in which the defense learns of the prosecution’s failure to fulfill its Rosario obligations sometime after the close of evidence and before the entry of judgment (see, People v Ranghelle, supra, at 62). Such a narrowing of the rule’s reach is hardly consistent with the majority’s expressed continuing "commitment” to the Rosario doctrine.

Second, the rule the majority adopts will lead to an unacceptable disparity in the administration of the Rosario rule. On the one hand, defendants who are able to demonstrate on direct appeal the existence of a complete failure to disclose Rosario material will be entitled to a new trial without further inquiry. In contrast, defendants who have equally meritorious Rosario claims but are relegated to CPL 440.10 challenges will be required to make a particularized showing of actual prejudice and, for the reasons discussed above, are unlikely to succeed. This disparity is especially troubling because it makes the outcome depend largely upon the timing of disclosure, a matter that is solely within the People’s control.

Third, because the timing of disclosure will now be all büt dispositive, the rule the majority adopts creates a strong incentive for prosecutors who belatedly discover potential Rosario material to postpone disclosure until after sentencing, when the record available for direct appeal is closed and the only remedy the defendant has is to seek CPL 440.10 postjudgment relief. Such a result is objectionable because it rewards prosecutorial gamesmanship and runs directly counter to the underlying Rosario policy of encouraging prompt and full disclosure.

VI.

In closing, I would note my fundamental disagreement with this majority’s approach to judicial decision-making, which emphasizes policy considerations over logic and precedent. One obvious problem with this approach is that it renders the law susceptible to sudden directional changes based upon nothing more than a change in the prevailing judicial sentiment or even "the accident of a change in [the Court’s] composition” (Simpson v Loehmann, 21 NY2d 305, 314 [Breitel, J., concurring]). Today, for example, the Court has reduced the Consolazio-Perez-Ranghelle-Jones principle from a logically necessary corollary of the Rosario rule to a mere policy choice. While today’s majority professes its continued devotion to the basic principle, this demotion certainly opens the way for its further curtailment — or even its reversal — since a rule based on policy alone is readily susceptible to attack by a court that wishes to emphasize other values or policy considerations (compare, People v Bing, 76 NY2d 331, with People v Bartolomeo, 53 NY2d 225).

To be sure, we in the judiciary must operate in the real world, and our decision-making must reflect sensitivity to the practical consequences, as well as the legal and theoretical implications. Ultimately, however, our responsibility in the judiciary is to apply reasoning and precedent with a view toward fairness, both to society and the accused. While society’s interest in the finality of criminal convictions is, no doubt, an important value, so too is society’s interest in the "fundamental objective” of providing the accused with a fair opportunity to test the People’s witnesses through the crucible of cross-examination — the value that informs the Rosario rule (see, People v Jones, supra, at 550, quoting People v Perez, supra, at 158). To the extent that we remain committed to that value, we are also duty bound to uphold it even in contexts where the consequences may be viewed by some as undesirable. Indeed, as has been noted in another context, if a court is "really committed to” a particular principle, "its subsequent decisions * * * [should] nourish” rather than undermine it (People v Bing, supra, at 343).

In sum, I find no reason to depart from the principle that this Court established in People v Consolazio (supra) and has followed without deviation for some 15 years, despite numerous challenges (see, People v Jones, supra; People v Novoa, 70 NY2d, at 499, supra). In the absence of a persuasive statutory or precedential ground for altering the standard based on the procedural context in which the Rosario challenge is raised, I conclude that a CPL 440.10 motion to vacate a judgment because of the prosecution’s failure to deliver Rosario material must be granted — without regard to particularized prejudice— to the same extent that such a failure would constitute error requiring reversal on direct appeal. Accordingly, I vote to affirm.

Judges Simons, Kaye and Bellacosa concur with Chief Judge Wachtler; Judge Titone dissents and votes to affirm in a separate opinion in which Judges Alexander and Hancock, Jr., concur.

Order reversed, etc. 
      
      . The majority’s reliance on the use of a policy justification in Rosario is misplaced (see, majority opn, at 643), since the issue in this case is not whether the Rosario doctrine itself should be available in postconviction challenges, but rather, whether the per se rule of reversal, which was extrapolated as a natural and logical corollary of Rosario, should also be available. As to this question, the rationale utilized in the line of cases establishing the latter rule is the proper source of guidance. Similarly the discussions delineating certain substantive limitations on the scope of the prosecutor’s Rosario duty (People v Poole, 48 NY2d 144; People v Consolazio, 40 NY2d 446, 454), which the majority cites (majority opn, at 644), are completely irrelevant in this context.
     
      
      . The majority notes that no prior Rosario challenges have reached this Court in precisely the same posture as this appeal and then extrapolates that "applying the rule we articulate today * * * will as a practical matter not affect the vast majority of defendants who raise Rosario claims” (majority opn, at 648). This apparent effort at apology will be cold comfort for those defendants relegated to CPL 440.10 proceedings. Futhermore, there is irony in the majority’s present attempt to minimize the significance of its decision as inapplicable to "the vast majority of defendants who raise Rosario claims.” That assertion is directly contrary to the People’s claim that if the per se rule were applied in CPL 440.10 proceedings, "[e]very criminal conviction, regardless of its age or * * * fairness * * * would thereby be placed at risk” — a contention that members of the majority have found very persuasive.
     
      
      . While the Novoa Court may have overlooked the procedural posture in which the Rosario issue was presented because it was "not asked to consider [it] at that time” (majority opn, at 641), that circumstance cannot excuse the majority’s present misapprehension about that question.
     
      
      . Even where the Rosario material has been discovered before disposition of the direct appeal, there remains the possibility that the direct appeal will be determined before the CPL 440.10 motion based on the Rosario violation can be heard and determined. While the defendant in such situations can seek to have the disposition of the direct appeal held in abeyance, it seems capricious and unfair to make the availability of a more favorable standard of review turn upon the defendant’s success in navigating such a series of procedural hurdles.
     
      
      . I note that the prejudice required by the majority’s decision here is not the same as the prejudice that the Ranghelle decision requires when disclosure is delayed but nonetheless made during trial. The latter includes any prejudice flowing from the impairments to the defense’s trial strategy that were caused by the delayed disclosure. The former, in contrast, appears to permit relief only when the undisclosed evidence has self-evident probative worth that might have affected the guilt determination.
     
      
      . I reserve a degree of skepticism about the majority’s declared support for the Consolazio-Perez-Ranghelle-Jones rule, particularly since one of its four members has so recently called it an "errant footstep” and urged its reversal by the Legislature (People v Jones, 70 NY2d 547, 553-557 [Bellacosa, J., concurring]).
     