Ithaca Watkins Glen DWI lawyer: SCARY TRUTH -You're not entitled to Police Report until AFTER Cop Testifies in NY!

SCARY TRUTH:  You're NOT entitled to get your Police Report until after the Officer testifies in NY... (for real)!

This issue shocked me when I first started practicing in NY.   I'm a licensed attorney in Massachusetts, Maine, and New York.   Both Mass and Maine have pretty similar laws when it comes to getting the evidence against from a Prosecutor if you're charged with a crime.  They give it to you immediately -- when I worked in the Boston District Attorney's Office we used to give defense counsel a copy of the entire contents of our file at the very first time in court...

NOT IN NEW YORK.

ARCHAIC DISCOVERY RULES IN NEW YORK

Criminal Procedure Law 240.44 governs the issue we're discussing --when the defense gets any "non-confidential written or recorded statement...made by the person the prosecution intends to call as a witness at trial and which relates to the subject matter of the witness' testimony."   This is known as "ROSARIO" material.  People v. Rosario  9 NY2d 286 (1961).  

Basically, a police report is ROSARIO material in almost every criminal case.  

Q:  So what does CPL 240.44 say about WHEN the prosecutor gives us this stuff?   

A:  The Prosecutor MAY give the defense this information at the conclusion of the direct examination of each witness...  

ARE YOU KIDDING ME?   

Essentially, this means that a NY prosecutor could not give necessary evidence until the first hearing (or trial if defense counsel forgets to ask for it)--and AFTER their first witness testifies...  

That's crazy.  It's also inherently unfair.  How do you defend a case if you don't know what the evidence against your client is... When I tell clients about these rules they're usually shocked and appalled. 

HOW WE DEAL WITH THIS PROBLEM...

Fortunately, even if you're up against an unethical prosecutor who refuses to give the necessary evidence in a case, the defense is entitled to "adequate time" to review and prepare cross-examination on any evidence.  

So, we ask the Judge to do one of two things:

a)  Toss out all the evidence and not allow the prosecutor to use it and  have the witness testify; OR

b)  Ask for a several day/week adjournment so that we can adequately prepare a proper cross-examination (and request to put it on the prosecutor's timeline for Speedy Trial Rules CPL 30.30)

Most DA offices are not going to abuse these rules and give us the necessary evidence in a timely manner.   Occasionally, we get surprised by something a Prosecution witness says, but we know to ask for any ROSARIO material pertaining to their testimony --and then request an adjournment if necessary.  If we know about an existing report that we have NOT seen yet, we can also make a discovery motion (to supplement the one we always give at the first court appearance) to make the Judge aware of the problem even before we get to the hearing stage.  There's lots of ways to deal with the issue.  

My point is:  we shouldn't have to do any of this stuff.  The prosecutor should willingly give us all the info on a case --and if they have a good case --then great / if they have a bad case, the defense should know.  Simple as that.  Justice is not done when somebody is convicted based on the withholding of evidence by a prosecutor.

My hope is that more people become aware of this problem and make their voices heard. 

By Mike Cyr

Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.

If you have questions about a marijuana charge, DWI, felony charge, misdemeanor charge or another violation in Ithaca, Watkins Glen, Elmira, Seneca, Chemung, Yates, Steuben County or the surrounding counties of Upstate New York , give us a call, shoot us an email, or fill out the form on our website:

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DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 

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