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PEOPLE v. BARRETT

256 A.D.2d 4 (1998)

682 N.Y.S.2d 132

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. GRANVILLE BARRETT, Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided December 1, 1998.

Where defendant's Rosario claim is adjudicated pursuant to a post-judgment CPL 440.10 motion, even one brought before his direct appeal is exhausted, it is error to apply a "per se" rule (People v Machado, 90 N.Y.2d 187; see, People v Cohen, 242 A.D.2d 473, lv denied 91 N.Y.2d 871; People v Kronberg, 243 A.D.2d 132, lv denied

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