People v. Eldridge

—Judgment unanimously reversed on the law and new trial granted. Memorandum: On appeal from a judgment convicting him of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), defendant contends that he is entitled to a new trial based upon the People’s failure to provide him with Rosario material (see, People v Martinez, 71 NY2d 937, 940). We agree.

At trial, the principal prosecution witness testified that she purchased crack cocaine from defendant at his home for $20. She further testified that, within minutes, she made another $20 purchase of crack cocaine from an address directly across the street from defendant’s apartment. Both sales were the subject of Grand Jury proceedings. The People provided defendant with a transcript of the testimony of the witness before the Grand Jury in the instant case, but refused to produce her testimony at the Grand Jury proceeding involving the second sale.

*1110Pursuant to CPL 240.45 (1) (a), the prosecution must provide to the defense "[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 Grand Jury testimony of the witness concerning the second cocaine purchase was directly related to the subject matter of her testimony at trial (see, CPL 240.45 [1] [a]; cf., People v Fluellen, 132 AD2d 455, lv denied 70 NY2d 874). The People’s failure to produce that Grand Jury testimony constitutes per se reversible error requiring a new trial (see, People v Martinez, supra, at 940; see also, People v Banch, 80 NY2d 610, 615).

In view of our resolution, we do not address defendant’s remaining contentions. (Appeal from Judgment of Ontario County Court, Henry, Jr., J. — Criminal Sale Controlled Substance, 3rd Degree.) Present — Green, J. P., Fallon, Callahan, Doerr and Davis, JJ.