author: Kaye, J. Bellacosa, J.

text:
    The People of the State of New York, Appellant, v Cheryl McNamara, Alma Harrison, Rose Marie Terrell and Martyn D. Hill, Respondents.
    Argued November 14, 1991;
    decided December 19, 1991

      POINTS OF COUNSEL

      Kevin M. Dillon, District Attorney (Raymond C. Herman and John J. DeFranks of counsel), for appellant.
    The informations charging public lewdness are facially sufficient. (People v Miles, 64 NY2d 731; People v Hollman, 68 NY2d 202; Arkansas v Sanders, 442 US 753; People v Belton, 55 NY2d 49; People v Hook, 3 NY2d 485; People v Darryl M., 123 Misc 2d 723; Sega v State of New York, 60 NY2d 183; People v Onofre, 51 NY2d 476.)

      David C. Schopp, Linda S. Reynolds and Barbara J. Davies for respondents.
    The informations charging public lewdness are facially insufficient. (People v Alejandro, 70 NY2d 133; People v Case, 42 NY2d 98; People v Belton, 55 NY2d 49; Coolidge v New Hampshire, 403 US 443; People v Anonymous Female, 143 Misc 2d 197; People v Conrad, 70 Misc 2d 408; People v Ventrice, 96 Misc 2d 282; People ex rel. Campbell v Board of Police Commrs., 13 App Div 69; People v Reilly, 282 App Div 884; People v Ulman, 258 App Div 262.)
   OPINION OF THE COURT

Kaye, J.

A person "is guilty of public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed.” (Penal Law §245.00.) Respondents were separately charged with having violated section 245.00 (a) by committing sexual acts in parked cars in the City of Buffalo. The sole question presented by this People’s appeal is whether the informations sufficiently alleged that lewd conduct occurred in a "public place” within the meaning of the statute. No constitutional issue is raised, nor is the characterization of respondents’ conduct as lewd challenged.

We agree with respondents that the factual allegations were insufficient to establish the statutory element of a "public place,” and therefore affirm County Court’s order dismissing the prosecutions.

I.

The information against respondent Cheryl McNamara charged that on September 27, 1989, at or about 1:50 a.m., "while at 291 15th Street, a public place * * * in the rear seat of a 1989 Ford” she exposed private parts of her body while engaged in sexual intercourse with another person, and that the "vehicle in which the defendant was seated, was parked in a well lit area, and its interior was readily visible to passerbyers.”

Separate informations filed against respondents Rose Marie Terrell and Martyn D. Hill charged that on December 5, 1989, "while at 34 Colorado, a public place * * * seated in a 1988 Ford Bronco II” respondent Terrell committed a sexual act upon respondent Hill, and that those "actions were being committed on a public residential street.” The information against respondent Alma Harrison charged that on December 5, 1989, at or about 12:45 a.m., "while at 70 Colorado, a public place * * * in the passenger seat of a GMC Jimmy truck” respondent committed a sexual act upon another person while "parked in a well lit residential area.”

Buffalo City Court dismissed all four informations. The McNamara information was deemed insufficient because it alleged "no facts which would show that the defendant intentionally exposed the private or intimate parts of her body in a lewd manner, with intent that she be so observed.” The court also stated that it was "preposterous” that the lewd exposure charged in the information had as its purpose "public entertainment, in turn to titillate the defendant.” The court dismissed the Harrison information because the allegation that the acts occurred in a vehicle parked in a well-lit residential area did not establish a "public place” under Penal Law § 240.00. The Terrell and Hill informations were found insufficient on the grounds that the area of occurrence was not a "public place,” and the prosecution was an attempt to criminalize consensual sodomy (citing People v Onofre, 51 NY2d 476).

After consolidating the four cases for purposes of the People’s appeal, the Erie County Court affirmed the dismissals, apparently on the ground that the informations failed to allege facts supporting the conclusion that the acts complained of occurred in public places. We now affirm.

II.

To be facially sufficient, the factual part of an information must meet two requirements: the allegations must provide reasonable cause to believe that the defendant committed the offense, and the nonhearsay allegations must establish, if true, every element of the offense charged (CPL 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133, 136-137). This case calls upon us to determine whether the informations charging respondents with public lewdness were facially defective because they failed to establish the statutory element that respondents’ acts were committed in a "public place” (Penal Law § 245.00 [a]).

At the core of this statutory interpretation question is the relevance of respondents’ intent concerning whether a place is "public.” The statutory requirement of intent to expose private or intimate bodily parts lewdly, or to commit a lewd act, is not in question.

The People contend that the informations satisfied the statute by alleging that respondents engaged in sexual activity in parked cars on Buffalo streets, and no intent that one be observed is required. Respondents, by contrast, urge that "public place” as used in this statute imports such a degree of "publicness” as to require intent that they be observed or reckless disregard that they might be observed. City Court, in dismissing the McNamara and Hill informations, relied on an even broader understanding of intent requiring not only intent to be seen, but a purpose "for public entertainment, in turn to titillate the defendant.” As these differing understandings of "public place” demonstrate, in the context of this statute the phrase has no single readily ascertainable "plain meaning.”

Penal Law § 245.00 does not itself define "public place,” nor does the remainder of article 245 — in which the section is situated — define the term, even though the words "public place” appear in other article 245 offenses (Penal Law §§ 245.01, 245.02).

The People ask us to adopt the definition found in the immediately preceding article — article 240, "Offenses Against Public Order.” However, section 240.00 specifies that its definitions are "applicable to this article,” signalling at the outset that they are inapplicable to article 245 ("Offenses Against Public Sensibilities”), which is directed to offenses against "public sensibilities,” not "public order,” and proscribes different conduct (see, Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 240.00, at 249 [1980]). We likewise reject the People’s argument that the definition of "public place” should be drawn from Fourth Amendment decisions holding that there is a diminished expectation of privacy in automobiles. Plainly, the existence of a diminished expectation of privacy does not transform the interior of an automobile into a "public place.”

While not offering an explicit definition of "public place,” section 245.00 read in its entirety does suggest that mens rea in the form of intent to be observed, reckless disregard of observation, or intent to arouse or gratify sexual desires by means of public observation is not required by section 245.00 (a). The crime is defined as a lewd exposure or act "(a) in a public place, or (b) in private premises under circumstances in which [the actor] may readily be observed from either a public place or from other private premises, and with intent that he be so observed.” The placement of the phrase "with intent that he be so observed” after subdivision (b) rather than at the start of the section indicates that intent to be observed is required only in cases involving private premises, not public places. The structure of the section thus tends to contradict respondents’ claim that lewd conduct is not performed in a "public place” unless the actor intends to be observed or has some other culpable mental state regarding observation by others.

This conclusion is borne out by the legislative history, which is additionally instructive in determining what factual allegations are necessary to satisfy the statute. In approaching legislative history, we bear in mind that statutes "punishing indecent exposure, though broadly drawn, must be carefully construed to attack the particular evil at which they are directed.” (People v Price, 33 NY2d 831, 832.)

Penal Law § 245.00 was part of an over-all revision of the Penal Law — based on recommendations by the Temporary State Commission on Revision of the Penal Law and Criminal Code — which reorganized specific offenses and grouped like offenses together.

As originally enacted, article 245 consisted of two offenses: public lewdness and offensive exhibition. An amendment prior to its effective date added two more — exposure of a female and promoting the exposure of a female (L 1967, ch 367; now "exposure of a person” and "promoting the exposure of a person” [Penal Law §§ 245.01, 245.02]). Finally, addition of public display of offensive sexual material in 1971 (Penal Law §§ 245.10, 245.11) gave the article its present form.

Viewing these separate components of article 245 together, it is obvious that article 245 was aimed at protecting the public — in essence, "unsuspecting, unwilling, nonconsenting, innocent, surprised or likely-to-be offended or corrupted types of viewers” (People v Conrad, 70 Misc 2d 408, 410) — from the sight of offensive activities and materials (People v Hollman, 68 NY2d 202, 207 [Penal Law § 245.01]; People v Craft, 149 Misc 2d 223, 225 [same]; see also, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 245.00, at 296 [1989]). Thus it is clear that the evil at which section 245.00 (a) is directed is the offense created by the proscribed displays rather than the culpable mental state of persons engaging in them. When the actor’s intent was to be relevant — as in the prosecution of lewd acts in private places — the Legislature made that express (Penal Law § 245.00 [b], added by L 1968, ch 748).

Respondents urge that a draft of the revised Penal Law circulated as a study bill by the Commission before enactment of the revised Penal Law supports their view that an informatian charging a violation of section 245.00 (a) must demonstrate the actor’s intent to be observed (S Intro 3918, A Intro 5376; 1964 [vol 15] NY Senate Bills, at 184-186). That draft classified public lewdness as a form of disorderly conduct, requiring an intent "to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,” and as a form of harassment, requiring an intent "to harass, annoy or alarm another person.” (Proposed NY Penal Law §§ 250.05, 250.10, reprinted in McKinney’s Cons Laws of NY, 1964 Spec Pamph.) They contend that these intent elements carried over into Penal Law § 245.00 as it was subsequently enacted.

Respondents’ argument is unpersuasive, and indeed invites the contrary conclusion. Most significantly, the study bill was not enacted by the Legislature, despite State-wide hearings and extensive public comment (Fourth Interim Report of State of NY Temp Commn on Revision of Penal Law and Criminal Code, Feb. 1, 1965, 1965 NY Legis Doc No. 25, at 9). Moreover, the study bill made public lewdness a category of disorderly conduct and harassment, within "Offenses Against Public Order” (Third Interim Report of State of NY Temp Commn on Revision of Penal Law and Criminal Code, 1964 NY Legis Doc No. 14, reprinted in 1964 McKinney’s Session Laws of NY, at 2024). As subsequently enacted, however, public lewdness was made a separate offense within "Offenses Against Public Sensibilities.” It is apparent from this placement that the intent elements of disorderly conduct and harassment were eliminated from the offense of public lewdness, and that in the codification the newly created offense of public lewdness was regarded as belonging to a different classification of crimes.

Respondents point to decisions under the predecessor statute, Penal Law § 1140, as additional support for their argument that intent to be observed is a necessary element under Penal Law § 245.00 (a). However, the language df former section 1140, which required that acts be done "wilfully and lewdly,” is materially different from that of present section 245.00 (a) with respect to mental culpability. For that reason, decisions under former section 1140 — and indeed those of other States under similar but not identical statutes — are of limited pertinence in the present analysis.

We therefore conclude that the actor’s intent is irrelevant to determining what is a "public place” under Penal Law § 245.00 (a).

III.

While rejecting respondents’ argument that a mens rea is required with respect to "public place,” we cannot accept the People’s contention that allegations of sexual activity in parked cars at stated addresses alone satisfy the statute. Indeed, were we to accept the People’s contention we would in effect be adopting the definition of "public place” found in article 240 — "a place to which the public or a substantial group of persons has access.” The Legislature chose not to make that same broad definition applicable to article 245; nor should we.

Our review of the statute, including its purpose and background, persuades us that, contrary to the People’s argument, more than public access to a street is necessary for the interior of a parked vehicle — which may be wholly shielded from outside viewing — to be considered a "public place” under Penal Law § 245.00 (a). Obviously, places that are public in a property sense can be very private in terms of the likelihood of casual observation. Though both may be "public,” for example, the interior of a vehicle parked on the side of a desolate road is not a "public place” in the same sense that the interior of a car parked at a busy downtown shopping area might be. And between these two examples exist a wide variety of locales that may be classified as more or less "public.”

Because the term "public place” has no cut-and-dried meaning, it is necessary to interpret and apply the statute here in a manner that comports with its purpose. As has been observed in an analogous context, since "the rationale of this provision is to prevent the open flouting of societal conventions, it should not condemn as debauchers of public morality persons who desire privacy and who take reasonable measures to secure it.” (Model Penal Code and Commentaries, part II, § 251.1, comment 2, at 452 [ALI 1980].)

That a member of the public may pass by is certainly part of the essence of a public place, and the harm to such a person’s sensibilities is precisely that aimed at by the statute. Conversely, where no such harm is likely, the statute is not violated. We therefore conclude that the interior of a parked vehicle is a "public place” for purposes of this subdivision where the objective circumstances establish that lewd acts committed there can, and likely would, be seen by the casual passerby, whose sensibilities the statute seeks to protect.

Thus, the interior of a vehicle parked at a stated address is not itself a "public place,” but it may become one under circumstances indicating that the car’s interior is visible to a member of the passing public, and that the vehicle is situated in a place where it likely would be observed by such a person.

IV.

Applying this definition to the facts at hand, it is clear that none of the informations before us describes a "public place” under the statute.

The McNamara information comes closest to being sufficient. It alleges that respondent’s acts could be observed, in that the vehicle was parked in a well-lit area and its interior was readily visible to the casual passerby. However, the information failed to establish that the vehicle was situated in a place where it was likely that respondent’s lewd acts would be observed by such a person. The information alleged only that respondent’s acts were committed in a parked car in a "public place” (the statutory words), not that the car was on a street where people resided or otherwise might encounter it. That the information referred to "291 15th Street” does not cure this deficiency; as respondent points out, the address could as readily refer to a private driveway as to a residential street.

The remaining informations were also deficient. They failed to establish that respondents’ acts were capable of observation, as they did not indicate that the vehicle interiors were visible to passersby; the Terrell and Hill informations did not even allege that their vehicle was parked. Thus, none of the informations under review contained sufficient factual allegations to establish reasonable cause to believe that respondents committed the offense of public lewdness, or to establish every element of that offense. The informations were therefore properly dismissed.

Finally, we note that the dissent’s fears that the streets are transformed into "sanctuaries of such criminal activity” (dissenting opn, at 637), or sex in parked cars exempted from prosecution (dissenting opn, at 636), are without basis. Sexual acts performed in parked cars on public streets may be prosecuted as public lewdness when the circumstances are such that the vehicles may be considered a "public place” — in other words, when the objective circumstances establish that the lewd acts committed there can and likely would be seen by the casual passerby. This is not a "new element” (dissenting opn, at 637). It is a requirement that objective facts be alleged indicating that the harm aimed at by the statute has occurred.

Accordingly, the order of the Erie County Court should be affirmed.

Bellacosa, J.

(dissenting). I would reverse and reinstate the informations charging the crimes of lewdness in a public place (Penal Law § 245.00 [a]): "intentionally exposing] the private or intimate parts of [one’s] body in a lewd manner or commit[ting] any other lewd act (a) in a public place” (emphasis added). The sole issue in this case is whether the concededly lewd exposures were sufficiently pleaded as having occurred in a public place.

The crimes, according to the criminal informations, took place in parked vehicles on public streets in residential neighborhoods in Buffalo. Illustrative of the salient portions of the sworn accusatory informations based on the police officers’ "own knowledge” are:

"that [McNamara] while at 291 15th Street, a public place * * * in the rear seat of a [car] * * * engaged in an act of sexual intercourse * * * [in a] vehicle * * * parked in a well lit area, and its interior was readily visible] to passer[s]-by”;
"that [Harrison] while at 70 Colorado, a public place * * * while seated in the passenger seat of a [truck engaged in fellatio] * * * [while] parked in a well lit residential area”;
"that [Terrell and Hill were] while at 34 Colorado, a public place * * * observed by officers committing a sexual act [fellatio] in the front seat [of the car] * * * on a public residential street” or "a public street in a residential area”.

Where the Legislature has given no indication that a different meaning is intended, the plain meaning of the statutory words controls (People v Cruz, 48 NY2d 419, 427-428; see, Matter of Alonzo v New York City Dept. of Probation, 72 NY2d 662, 665). The plain meaning of "public place” includes the residential street locations specified in the accusatory instruments. Acts of sexual intercourse and fellatio performed at selected sites on public streets in parked vehicles are not and should not be exempted from prosecution at the threshold of the criminal proceeding, a result brought about by the rationale of this case.

The essential flaw, as I see it, in the majority’s analysis, leading to a declaration of facial defectiveness of the accusatory, instruments, is the failure to give effect to the plain and commonly understood meaning of "public place” and, instead, to add a significant element to the Legislature’s definition of this crime. No support is evident to me for the majority’s conclusion that "public place” is a place where such acts "can, and likely would, be seen by the casual passerby” and that this new ingredient must be pleaded in haec verba or with underlying factual or evidentiary allegations (majority opn, at 634). The casual passersby observation gloss, moreover, is entirely inappropriate at the accusatory instrument stage of these prosecutions. The particular criminal informations, ironically, contain graphic, explicit or commonly accepted inferential assertions satisfying this very ingredient, even under the test which the majority adopts. It is not necessary that the informations expressly negate the existence of potential defenses or other factors impeding the officers’ views inside the vehicles. Again, these are matters of proof, not pleading.

The hypertechnical approach in this respect is contrary to modern criminal jurisprudence and precedents with respect to the contents of accusatory instruments. It transforms matters of proof into tautological pleadings formalities, a throwback to long-discarded common-law pleadings notions. The unsettling principle thus emerging from the case is likely to generate undesirable confusion with respect to other categories of criminal accusation and rattles the rationale of People v Iannone (45 NY2d 589, 596).

The courts enjoy no competence to superimpose greater definitional content on the Legislature’s enactment in this area, or to require greater specificity from prosecutors in their accusatory documents. The statute and its enforcement are the vehicles to insure that public streets are free of these criminal activities. The majority’s addition, for pleading purposes, to the statutory words, "public place”, instead transforms the public streets into sanctuaries of such criminal activity (see, People v Iannone, 45 NY2d 589, supra; cf., People v Alejandro, 70 NY2d 133). The Legislature has determined that the forbidden conduct itself — public lewdness — is sufficiently offensive and detrimental to the common good and quality-of-life values of ordinary citizens — where they live— that it constitutes a defined crime.

Moreover, the accused actors were, in fact, observed performing their sex acts in public. Police officers saw enough of the criminal conduct and acts to supply the official sworn statements as parts of the criminal accusatory instruments. For accusatory purposes, nothing could be more public than what actually happened, where it happened, what the police officers observed and what the prosecutor charged — other than perhaps the actors engaging in their criminal sexual conduct on the sidewalk itself or in a vehicle with windows, doors or convertible roofs open. Holding that sexual activity performed in vehicles parked on residential streets is not committed in a "public place” defies the natural, plain and commonly understood meaning and purpose of the Legislature’s enactment in Penal Law § 245.00 (a). This is not a case, as the majority posits (majority opn, at 634, n 4), of misusing Justice Stewart’s famous aphorism concerning obscenity (Jacobellis v Ohio, 378 US 184, 197); here, the police officers swore they saw the criminal conduct, which they graphically described in the accusatory instruments. They knew what they saw and that it violated a penal statute and they did what they were supposed to do: criminally charged the defendants.

Because I agree with the majority that the informations accused defendants of strict liability crimes not requiring any culpable mental state, I am baffled that, in the next breath, the majority proceeds to rewrite the plainly worded statute by inserting, without any authority, a judicial gloss which, in effect, adds a culpable mental state or new element into the penal statute. Since I know of no authority for this, I must dissent and vote to reverse.

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

Order affirmed.

      . County Court, in affirming the dismissal, did not reach the consensual sodomy issue, nor do we.

      . " 'Public place’ means a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.” (Penal Law § 240.00 [1].)

      . The section replaced Penal Law § 1140, which provided that a person "who wilfully and lewdly exposes his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another so to expose himself, is guilty of a misdemeanor.”

      . While the dissent takes us to task for not applying the "plain meaning” of "public place,” significantly no definition of the term is offered. By setting out objective criteria that implement the statute’s language and purpose, the Court avoids the approach of defining "public place” by — in effect — you know it when you see it.


source: Caselaw Access Project

author: Chief Judge Wachtler. Titone, J.

license: Public Domain

text:
    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]).