3662. PEOPLE, res, v. JOEL FAREZ, def-ap — Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell LLP, New York (Peter John Davis counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Emily Anne Aldridge of counsel), for res — Judgment, Supreme Court, Bronx County (Eugene Oliver, Jr. J.), rendered February 6, 2015, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to a term of 3 years, reversed, on the law, and the matter remanded for a new trial.
Supreme Court improperly limited both defense counsel’s discovery of Rosario material and his ability to cross-examine the police witnesses at trial. The Rosario material in question consisted of police documentation of the arrest of a third party. Supreme Court denied defendant’s discovery request, rejecting his trial counsel’s argument that defendant and the third party, both Hispanic males, had been contemporaneously arrested and separately charged with selling drugs to the same undercover officer at approximately the same time and location. In the absence of Supreme Court’s discovery limitations, defense counsel might have reasonably established a motive to fabricate the evidence due to police confusion between defendant and the third party (see People v. Hudy, 73 NY2d 40, 56 [1988] ["extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground"], overruled in part on unrelated grounds by Carmell v. Texas, 529 US 513 [2000]). Furthermore, as we have stated, where there is evidence raising the possibility of a “police motive to fabricate,” cross-examination of police witnesses is “highly relevant” (People v. Rios, 223 AD2d 390, 392 [1st Dept 1996], appeal withdrawn 87 NY2d 1024 [1996]). Thus, Supreme Court’s errors deprived defendant of his right to present a defense (see Hudy, 73 NY2d at 56; Rios, 223 AD2d at 392). As there was “a reasonable possibility that the non-disclosure materially contributed to the result of the trial” (CPL 240.75), Supreme Court’s errors were not “harmless beyond a reasonable doubt” (People v. Crimmins, 36 NY2d 230, 237 [1975]).
