[666 NE2d 1348, 644 NYS2d 475]

#### The People of the State of New York, Respondent, v Raymond Kelly, Appellant. The People of the State of New York, Respondent, v Alphonso White, Appellant. The People of the State of New York, Respondent, v Charles Brown, Appellant.

Argued April 25, 1996;

decided June 6, 1996

*249POINTS OF COUNSEL

*Susan J. Horwitz,*New York City, and *Daniel L. Greenberg*for appellants in the three above-entitled actions.

The prosecution’s failure to disclose prior statements of trial witnesses which were in the possession of the State Division of Parole, a law enforcement agency, violated the *Rosario*rule as a matter of law. *(People v Washington,*86 NY2d 189; *People v Young,*79 NY2d 365; *People v Rosario,*9 NY2d 286, 368 US 866; *People v*
      *250Jackson, 78 NY2d 638; *People v Jones,*70 NY2d 547; *People v English,*73 NY2d 20; *People v Huntley,*43 NY2d 175; *People v Parker,*82 AD2d 661, 57 NY2d 815; *People v Moore,*79 AD2d 619; *People v Alston,*77 AD2d 906.)

*Richard*A. *Brown, District Attorney*of Queens County, Kew Gardens *(Linda Cantoni*and *Steven J. Chananie*of counsel), for respondent in the three above-entitled actions.

I. Material in the sole possession of a government agency that does not work closely with the local prosecutor is not "within the control of a local prosecutor” and is therefore not *Rosario*material. *(People v Ranghelle,*69 NY2d 56; *People v Rosario,*9 NY2d 286, 368 US 866; *People v Perez,*65 NY2d 154; *People v Consolazio,*40 NY2d 446, 433 US 914; *People v Malinsky,*15 NY2d 86; *People v Alvarez,*70 NY2d 375; *People v Howard,*87 NY2d 940; *People v Washington,*86 NY2d 189; *People v Flynn,*79 NY2d 879; *People v Young,*79 NY2d 365.) II. Defendants’ *Rosario*claim is procedurally barred because they unjustifiably failed to place facts on the record to support their claim. *(People v Friedgood,*58 NY2d 467; *People v Ranghelle,*69 NY2d 56; *People v Rogelio,*79 NY2d 843; *People v Jackson,*78 NY2d 900; *People v Rivera,*78 NY2d 901; *People v Clark,*160 Misc 2d 81.)

*Robert M. Morgenthau, District Attorney*of New York County, New York City *(Patrick J. Hynes*of counsel), for New York County District Attorney, *pro se, amicus curiae*in the three above entitled actions.

The People should be deemed to possess a witness statement only if it is actually possessed by a law enforcement agency that assisted the People in the investigation or prosecution of the case on trial and if the local prosecutor has access to it. *(People v Malinsky,*15 NY2d 86; *People v Ranghelle,*69 NY2d 56; *People v Young,*79 NY2d 365; *People v Fishman,*72 NY2d 884; *People v Tissois,*72 NY2d 75; *People v Bailey,*73 NY2d 812; *People v Flynn,*79 NY2d 879; *People v Washington,*86 NY2d 189; *People v Howard,*87 NY2d 940; *People v Rutter,*202 AD2d 123.)

OPINION OF THE COURT

Bellacosa, J.

These three unrelated appeals present a common question: Are interview notes and reports of the State Division of Parole material that prosecutors are required to provide to defense counsel under CPL 240.45 (1) (a) and *People v Rosario*(9 NY2d 286, *cert denied*368 US 866)? Because Parole Division records *251are not generally in the possession or control of prosecutors and are plainly not so in these three cases under our well-developed precedents, we affirm the orders of the Appellate Division rejecting CPL 440.10 relief in each case.

The material facts and procedural histories of the postconviction proceedings in the three cases are virtually identical. After jury trials, Kelly and Brown were convicted of criminal sale of a controlled substance and related offenses, and White was convicted of rape in the first degree. Supreme Court, in CPL 440.10 proceedings, vacated the judgments based on failures of the prosecution to turn over to the defense records maintained by the New York State Division of Parole. These documents reflected interviews conducted by each defendant’s parole officer of the arresting police officer in the cases at issue here.

In each case, Supreme Court held that the parole officers’ interview notes and reports constituted *Rosario*material and, thus, should have been provided to the defense at trial for cross-examination purposes *(see,*CPL 240.45 [1]). The nisi prius courts (Supreme Court, Queens County, in all three cases) relied on the First Department’s decision in *People v Fields*(146 AD2d 505 [1989], *after remand*156 AD2d 225, *lv denied*75 NY2d 918). The Appellate Division, in *Fields,*held that handwritten notes of a witness interview in the actual possession of a State parole officer constituted *Rosario*material that local prosecution offices were required to acquire and provide to defendants’ lawyers.

The Appellate Division, Second Department, in the instant cases, here by leave to appeal granted by Judges of this Court, reversed the orders vacating the convictions. The Appellate Division reasoned that the records were distinctively those of the Division of Parole, a State administrative agency, and, thus, did not constitute *Rosario*material, because they were not in the possession or control of the respective prosecutors *(see, e.g., People v Kelly,*209 AD2d 436, 438).

CPL 240.45 (1) (a) codified the holding of *People v Rosario*(9 NY2d 286, *supra).*The statute requires prosecutors to disclose to the defense (1) "[a]ny written or recorded statement,” (2) "made by a person whom the prosecutor intends to call as a witness at trial,” and (3) "which relates to the subject matter of the witness’s testimony” (CPL 240.45 [1] [a]). While the statute speaks of "[a]ny written or recorded statement,” its scope has been judicially interpreted as limited to circumstances *252when the trial prosecutor actually has possession or control of requested materials subject to the *Rosario*rule. This Court has removed from the *Rosario*reach, for example, prison disciplinary transcripts *(People v Howard,*87 NY2d 940, 941), audiotapes made at autopsies by a medical examiner *(People v Washington,*86 NY2d 189, 191), reports filed with the Department of Motor Vehicles *(People v Flynn,*79 NY2d 879, 882), untranscribed plea minutes *(People v Fishman,*72 NY2d 884, 886), and a personal written account of the crime by a crime victim *(People v Reedy,*70 NY2d 826, 827).

The principal consideration for determining whether prosecutors have a fairness obligation under *Rosario*to turn over various materials focuses on whether these items actually are in or subject to the possession or control of the particular prosecution office *(People v Flynn,*79 NY2d 879, 882, *supra; People v Tissois,*72 NY2d 75, 78; *People v Reedy,*70 NY2d 826, 827, *supra; see also, People v Howard,*87 NY2d 940, 941, *supra).*Together with this key feature, the Court has recognized a number of sometimes interrelated factors, including whether the potential cross-examination materials are in the actual possession of what is primarily a law enforcement agency *(see, People v Washington,*86 NY2d 189, 192 *supra; People v Ranghelle,*69 NY2d 56, 64), whether a compelling reason exists to keep the items confidential *(see, People v Tissois,*72 NY2d 75, 78, *supra),*and whether material not in the actual possession of the prosecutor or an agency whose records may be deemed in the prosecutor’s control is in any event equally accessible to the defendant *(see, People v Fishman,*72 NY2d 884, 886, *supra).*

We are persuaded and satisfied that records of the State Division of Parole should not generally be deemed to be in the control of 62 county prosecutors, nor of any other prosecutorial office subject to the *Rosario*rule. The records at issue in these cases were initiated and created by parole officers assigned to supervise the released individuals. This role is independent of the police investigations that ensued and supported new criminal charges against the defendants. As such, the parole interview records were "in the possession of a State administrative agency,” which is not "within the control of a local prosecutor” *(People v Flynn,*79 NY2d 879, 882, *supra; see,*Executive Law §§ 259-a, 259-d). This conclusion is not affected by the incidental law enforcement functions that parole officers are authorized to perform *(see,*CPL 2.10 [23]; *see,*9 NYCRR 8004.2).

*People v Howard*(87 NY2d 940, *supra)*is instructive. In determining that witness statements given to State corrections *253officers in prison disciplinary proceedings were not *Rosario*material, we observed that the State Department of Correctional Services was "at the end of the State’s law enforcement chain” *(supra,*at 941). The State Division of Parole may also be viewed as generally beyond that "chain.” Ordinarily, therefore, it is outside of the legal or practical control of local prosecutors for *Rosario*purposes.

Indeed, the Division of Parole here and its counterpart, the Department of Correctional Services, are members of the State Executive Branch family. While both primarily serve agency functions (respectively, the supervision of parolees and prison inmates), they are also charged with respective, ancillary "law enforcement” tasks, but only when individuals under their actual or constructive custodial supervision violate governing rules or commit new crimes. These agencies, thus, do not represent "The People” in the distinctive and customary usage of that term for prosecutorial purposes. Despite their incidental law enforcement function, we decided in *Howard*not to impute possession of correctional department records to the local prosecutor because of the lack of prosecutorial control. That was the legally dispositive issue there, and it is here as well.

In sum, the prosecutors’ failure to provide these defendants with Division of Parole records does not violate the *Rosario*rule. To the extent that *People v Fields*(146 AD2d 505, supra) is to the contrary, it should not be followed.

Accordingly, in each case, the respective order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

In each case: Order affirmed.