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May 19, 1998

RAFAEL FLORES, Petitioner, against JOSEPH DEMSKIE, Acting Superintendent, Woodbourne Correctional Facility, Respondent.

The opinion of the court was delivered by: MUKASEY



 However true it may be that, as the judicial bromide has it, hard cases make bad law, *fn1" it is truer still that bad law makes hard cases. This is one of them.

 As set forth in greater detail below, the petitioner in this case, Rafael Flores, was convicted in Supreme Court, Bronx County, of sodomy in the first degree in violation of New York Penal Law § 130.50[1], "arising out of his deviate sexual intercourse with a six-year-old boy who lived in [his] apartment building." People v. Flores, 84 N.Y.2d 184, 186, 615 N.Y.S.2d 662, 639 N.E.2d 19 (1994). At trial, the prosecutor failed to turn over to defense counsel until after the verdict a police officer's memo book that contained a brief record of information arguably provided by the victim's mother, who testified at trial. The bad law in question is a rule fashioned by the New York Court of Appeals, holding that failure by a prosecutor to turn over to a defendant before the close of evidence the prior statement of a witness called by the prosecutor at trial is automatically grounds for a new trial, with no harmless error analysis permitted if the issue is raised on direct appeal of the conviction rather than on collateral attack. Failure to deliver such material "constitutes per se error requiring that the conviction be reversed and a new trial ordered." People v. Ranghelle, 69 N.Y.2d 56, 63, 511 N.Y.S.2d 580, 585, 503 N.E.2d 1011 (1986) (citation omitted). "The reasoning that spawned the Rosario rule [requiring such statements to be turned over to defense counsel] led us also to eschew harmless error analysis in cases arising during direct appeal in which the defendant was deprived of Rosario material at trial." People v. Banch, 80 N.Y.2d 610, 615, 593 N.Y.S.2d 491, 494, 608 N.E.2d 1069 (1992) (citations omitted). See also People v. Young, 79 N.Y.2d 365, 370, 582 N.Y.S.2d 977, 980, 591 N.E.2d 1163 (1992). Flores' lawyer at trial failed to take advantage of that rule, conceding instead that the entry in the memo book would have made no difference in what he did or how he questioned the mother at trial. Flores' petition in this court, pursuant to 28 U.S.C. § 2254, argues that his lawyer's candor deprived him of an automatic new trial and therefore of the effective assistance of counsel within the meaning of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

 Because of the New York rule referred to above, this case cannot be decided based merely on a straightforward analysis of whether petitioner was deprived in any meaningful sense of a fair trial. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) ("The writ would issue only where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.") (quoting Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000, 78 L. Ed. 2d 694, 104 S. Ct. 503 (1983)) (emphasis in original). Instead, what follows is a detailed review of the procedural course of this case through the state courts and before a Magistrate Judge of this court, a discussion of why I cannot affirm on the grounds set forth in the Report, *fn2" a brief foray into habeas corpus procedure in federal courts before enactment of the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, ("AEDPA"), findings of fact based on an evidentiary hearing I felt the need to hold, application of the rule at issue to the facts disclosed at that hearing, and finally resolution of a state law question never examined by the courts of New York on either direct review or collateral attack of Flores' conviction: whether the withheld material was the "duplicative equivalent" of material that was turned over, within the meaning of People v. Consolazio, 40 N.Y.2d 446, 454, 387 N.Y.S.2d 62, 66, 354 N.E.2d 801 (1976), and related cases, and therefore whether there was no violation of the rule at issue in the first place and hence no prejudice to Flores from whatever defects there may have been in the assistance provided by his counsel.

 For the reasons set forth below, that convoluted process yields the same result as would a simple harmless error analysis. Accordingly, the writ is denied and the petition is dismissed.


 A. Procedural History in State Court

 1. Trial and Direct Appeal

 On October 16, 1990, petitioner was convicted in New York State Supreme Court, Bronx County, of four counts of sodomy in the first degree and was sentenced on November 9, 1990 to four concurrent terms of imprisonment of five to 15 years. (Report at 1) Petitioner's trial attorney discovered during jury selection that the prosecution had failed to produce the memo book of a police officer who had interviewed the victim's mother. (Id. at 2) Although the victim's mother testified as a witness at trial, the police officer did not. (Tr. 36). *fn3"

 Again, under New York's Rosario rule, the prosecution must produce before trial any written or recorded statements made by a person whom the prosecution intends to call as a witness. N.Y. Crim. Proc. Law § 240.45(1) (a) (McKinney 1993) (codifying People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866, 82 S. Ct. 117, 7 L. Ed. 2d 64 (1961)). The prosecution's failure to disclose Rosario material before the conclusion of the trial is per se reversible error. See Ranghelle, 69 N.Y.2d 56 at 63, 511 N.Y.S.2d at 585.

 Although petitioner's trial attorney learned of the memo book entry during jury selection, he did not alert the court to its existence until after the prosecution presented its case. (Report at 2) When told that Rosario material remained undisclosed, the Court voiced exasperation with the prosecution: "The Court of Appeals has made it clear that we have to give these memo books over to the defense and here we are, the last day, thinking of charging the jury in a case that clearly must be reversed if you don't turn over the memo books." (Pet. Ex. J, Trial Tr. at 167) The Court then permitted the defendant's case to proceed and adjourned the trial until the prosecutor provided the missing memo book entry. (Report at 3) The following day, the prosecutor informed the Court that he could not obtain the memo book from the police officer. (Id.) The Court decided to charge the jury, and ordered that the "Court will have [counsel] preserve his exceptions for the record with respect to that memo book." (Id. at 4 (quoting Trial Tr. at 238)) The Court added, "When and if the memo book becomes available, it will be turned over to counsel and if counsel feels that it's appropriate, he will make whatever motions he deems necessary on behalf of his client even to the extent of setting aside the verdict if need be." (Id.) After the verdict but before sentencing, the prosecutor provided defense counsel with the memo book, of which more later. (Id.)

 At petitioner's sentencing, defense counsel told the Court that he had reviewed the memo book and had concluded that "there is absolutely nothing in the memo book that would have made any difference in terms of what I did or did not do, ask or did not ask and that's about it." (Id. (quoting Sentencing Tr. at 2)) The Court then asked whether defense counsel wished to make a motion with respect to the verdict, and counsel moved to set aside the verdict only as against the weight of the evidence, not on the basis of the Rosario violation. (Id.)

 On direct appeal, Flores argued both that the Rosario violation compelled automatic reversal and that his lawyer's failure to argue the point at sentencing deprived him of effective assistance of counsel. In July 1993, the Appellate Division, First Department unanimously affirmed the conviction. Its reasoning, notwithstanding the per se reversible error rules described in Ranghelle and Banch, supra, was as follows:

Implicit in the rule that a guilty verdict is to be vacated in the event of non-disclosure of Rosario material is a requirement that the material might have been of some value to the defense, although the defendant is under no burden to show how (cf., People v. Jones, 70 N.Y.2d 547, 552, n.4, 523 N.Y.S.2d 53, 517 N.E.2d 865 [1987]). When counsel candidly denies having any use for the material when it is finally disclosed, it cannot be said that the defendant has any substantive right to be vindicated, and there is no basis in law or logic to order a new trial when there is no new issue to be tried. There is no basis in the record to controvert counsel's conclusions, and neither can counsel's representation by deemed incompetent merely because he did not pursue a concededly frivolous substantive claim as a basis for a new trial.

 People v. Flores, 194 A.D.2d 439, 599 N.Y.S.2d 255, 256 (1st Dep't 1993). The footnote from Jones cited with the signal "cf." is simply a discussion rejecting harmless error analysis when Rosario material has been withheld on the ground that such analysis would require "sheer speculation as to what might have occurred and matters not in the record. . . ." Jones, 70 N.Y.2d at 552 n.4, 523 N.Y.S.2d at 56 n.4.

 On July 7, 1994, the Court of Appeals affirmed, with two judges dissenting. Flores, 84 N.Y.2d at 189, 615 N.Y.S.2d at 665. The majority brushed off the underlying Rosario claim, noting that there had been "no acknowledgment that [the memo book] even technically qualified as Rosario material." Id. 84 N.Y.2d at 186, 615 N.Y.S.2d at 663. The majority rejected the ineffective assistance of counsel claim as follows:

For all this record reveals about defense counsel's ultimate evaluation of the disclosed item, on the scene and in the circumstances at that postverdict stage of the criminal proceeding, defense counsel could have reasonably considered that his client's interest would best be served by no further delay in the resolution of the case against the client. Any number of other professional strategic reasons or personal considerations affecting the defendant's fair trial interests could also have informed the attorney's professional evaluation and choice on how and why to proceed in the way chosen. The record does emphatically inform us, even as an appellate court reviewing the matter, of the defense lawyer's assessment of the quality and nature of the ultimately disclosed item -- 'absolutely' useless. A plausible strategy might even have included advocacy for amelioration of sentence or some other nuanced advantage in the adversarial exchanges and context, all matters and features not knowable by trial or appellate Judges removed from the full range of choices and context exercised singularly by the trial lawyer for the defendant. In sum, Rosario was designed to insure that defense counsel, not Judges, should do the strategic viewing, weighing and exercising of the defendant's fair trial advocacy interests in this regard.

 Id., 84 N.Y.2d at 188, 615 N.Y.S.2d at 664 (citation omitted).

 2. Collateral Proceedings in State Court

 Unbeknownst to the Court of Appeals majority, its conjecture that defense counsel had made a strategic choice not to move for a new trial based on a Rosario violation, but instead to pursue some unspecified "nuanced advantage", had been undermined even before those words were written. In July 1992, a year before the Appellate Division affirmed the conviction on direct appeal, Flores moved pursuant to § 440.10 of New York's Criminal Procedure Law to set aside his conviction, based in part on ineffective assistance of counsel. Submitted with that motion was the affirmation of his trial counsel averring, under penalty of perjury, that at the time he acknowledged the uselessness of the memo book at sentencing,

I was not aware that the failure to turn over the memo book, unless waived, was per se reversible error that would have required vacatur of Mr. Flores' conviction. I believed that to prevail on a Rosario claim I would have to show prejudice.

 (Pet. Ex. L P 7)

 On December 4, 1992, the trial court denied the motion without a hearing. That Court acknowledged that it had virtually invited a new trial motion during colloquy about the missing memo book while the trial was ongoing, but noted that the motion it had in mind was an immediate motion pursuant to § 330.30 of New York's Criminal Procedure Law to set aside the jury verdict, not a motion two years after the conviction pursuant to § 440.10. (Pet. Ex. G at p. 3) That Court also expressed the assumption that the disposition of the § 440.10 motion would be "incorporated in defendant's direct appeal." (Id.) The motion and its disposition apparently were not so incorporated, an omission that permitted the Court of ...

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