People v. Douglas

—Order, Supreme Court, New York County (Alvin Schlesinger, J.), entered June 26, 1995, granting defendant’s motion pursuant to CPL 440.10 and vacating the judgment of the same court and Justice, rendered August 27, 1992, which convicted defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree and sentenced him, as a predicate felony offender, to an indeterminate term of 21/2 to 5 years imprisonment, unanimously reversed, on the law, defendant’s motion denied and the judgment of conviction reinstated.

Criminal Term relied upon People v Fields (146 AD2d 505, 508-509, after remand 156 AD2d 225, lv denied 75 NY2d 918) for its holding that a parole officer’s notes of a pretrial interview with a witness constitutes Rosario material under the control of the prosecution. However, subsequent thereto, the Court of Appeals overruled that holding in People v Kelly (88 NY2d 248) and, thus, possession of such parole records is not imputed to the local prosecutor because of the lack of prosecutorial control, and the prosecutor’s failure to provide defendant with such a record does not violate the Rosario rule. Concur—Wallach, J. P., Rubin, Nardelli, Williams and Andrias, JJ.