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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BEHROOZ KANANI, Appellant.

Defense counsel specifically requested the production of the videotaped Grand Jury testimony of the prosecution's child witnesses as Rosario material. CPL 240.45 (1), which is recognized as a codification of the Rosario rule ( see, People v. Washington, 86 N.Y.2d 189, 191-192), explicitly states:

"After the jury has been sworn and before the prosecutor's opening address, or in the case of a single judge trial after commencement and before submission of evidence, the prosecutor shall, subject to a protective order, make available to the defendant:

"(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter" (emphasis supplied).

In view of the mandatory terms of CPL 240.45, coupled with the fact that we find defense counsel's specific objections concerning Rosario material sufficient to preserve the issue and to invoke the provisions of the foregoing section, we find that the court erred in failing to direct the prosecution to turn over the videotapes in question and that such violation is reversible error requiring a new trial.

Concur — Sullivan, J.P., Ellerin, Ross, Nardelli and Tom, JJ.

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PEOPLE v. KANANI
(Apr 18, 1996)