A judge presiding over a sensational Sullivan County murder case has rebuffed the district attorney for the second time in a month for providing the defense with limited access to the statements of crucial witnesses.

Judge Frank LaBuda in Sullivan County Court, in a broad interpretation of People v. Rosario, 9 NY2d 286 (1961), said he "chooses to make no error, harmless or otherwise" and directed Sullivan County District Attorney James Farrell to reveal at a pretrial hearing the entire transcript of an investigator's grand jury testimony.

Farrell, although he disagrees with the decision, said he has agreed to provide the grand jury transcript, as well as other Rosario material, to the defense two weeks before the July 29 start of the trial.

LaBuda's June 24 order in People v. Novak, 233-2012, comes on the heels of a ruling a month earlier in which the judge said the defense is immediately entitled under Brady v. Maryland, 373 U.S. 83 (1963), to both exculpatory and inculpatory statements of the key witness.

Both decisions dealt with Rosario, a 1961 landmark decision in which the state Court of Appeals held that the prosecution has an obligation to share certain materials with the defense. Rosario material, unlike Brady material, can generally be withheld until the eve of trial.

LaBuda's most recent decision arose from a so-called Huntley hearing (15 NY2d 72, 1965), a pretrial proceeding on the manner in which police secured statements.

At the hearing, where the sole witness was Investigator Michael Kelly, Farrell questioned the officer about his grand jury testimony but provided the defense with only a redacted transcript. Defense attorney Gary Greenwald of Chester immediately complained, leading LaBuda to review the transcript in camera and ultimately order full disclosure.

"The right sense of justice is that taken as a whole, Inv. Kelly's grand jury testimony relates to the subject of his testimony at the Huntley hearing…and defense counsel was entitled to use any portion of it for purposes of impeachment during that pretrial hearing," LaBuda wrote. "The People have provided no plausible reason for failing to release the entirety of Inv. Kelly's grand jury testimony or otherwise obstructing the orderly flow of a pretrial hearing."

At the center of both rulings is defendant Paul Novak, who stands accused of arson and murder in connection with the 2008 death of his estranged wife, Catherine. Catherine Novak died in a fire at the couple's home in the Sullivan County hamlet of Luna at a time when she and her husband had separated and were planning to divorce.

Initially, the incident was deemed an accident after Novak's then-girlfriend Michelle LaFrance provided an alibi for the defendant. However, after her relationship with Novak ended in early 2012, LaFrance contacted the state police and told them that she had previously lied.

In a statement to police, LaFrance said Paul Novak was not with her on Long Island when Catherine Novak was killed, as she had previously claimed. Rather, she said, Novak and a friend, codefendant Scott Sherwood, drove upstate to kill the victim. The investigation was reopened and Sherwood gave police a detailed statement implicating Novak, who did not speak to authorities.

Greenwald sought both of LaFrance's statements—the 2008 version, which the prosecution contends was false, and the 2012 statement, which the district attorney claims is truthful. Farrell, however, argued that only the prior statement is immediately discoverable and that the more recent statement is Rosario material that he does not have disclose until the brink of trial. LaBuda rejected his reasoning in a recent decision (NYLJ, June 6).

Discovery issues reemerged at the Huntley hearing.

After his direct examination of Kelly, Farrell provided the defense with a redacted copy of the witness' grand jury testimony just prior to cross-examination. He claimed the defense was not immediately entitled to more, and also opposed the court's in camera inspection of the transcript under People v. Rose, 215 AD2d 875 (1995). In Rose, the Third Department said the Rosario rule "has never been interpreted so broadly as to grant defense counsel an open invitation to peruse the prosecutor's file."

LaBuda, however, cited a more recent Third Department holding in People v. Carota, 93 AD3d 1072 (2012). The Carota court said the prosecution's failure to turn over Rosario grand jury testimony until after a Huntley hearing was an error, but a harmless one since the defense had a meaningful opportunity to cross-examine the witness prior to trial.

"In the case at bar, this Court chooses to make no error, harmless or otherwise," LaBuda wrote. "After a careful in camera review of the entire grand jury testimony of Inv. Kelly, including the redacted portions, this Court finds no plausible reason why said testimony should not have been disclosed to defense counsel for the purposes of cross-examination of the witness during the Huntley hearing."

Greenwald said this incident marked the first time in his 40 years of practice that he was handed a redacted grand jury transcript at a Huntley hearing.

"Where you see redactions are in police reports and in other records, but not in grand jury testimony," Greenwald said. "I believe Judge LaBuda was correct. We see this as a major victory, procedurally."

Farrell said he had obtained a stay from the Third Department on LaBuda's May order regarding LaFrance's statements, and maintains that the entirety of Kelly's grand jury testimony does not need to be turned over until trial under Rosario.

However, Farrell said he is eager to get the case moving and agreed with the defense and judge to provide the LaFrance statements and an unredacted version of Kelly's testimony two weeks before trial.

"Instead of bringing another Article 78 on the Huntley decision, because I think it is wrong under the law, I agreed to provide the full Rosario packet two weeks prior to jury selection," Farrell said. "Nobody wants an adjournment and everyone has come to a middle ground. I want to get this case tried. The defense wants to get it tried. [Novak] is in jail and I don't want to prolong his stay pretrial."