71 N.Y.2d 929 (1988)

When the prosecution loses or destroys Rosario material (prior statements of a witness), the trial court must impose an appropriate sanction, focusing primarily on eliminating prejudice to the defendant.

Summary

Defendant was convicted of robbery. A key issue was the loss of police notes containing a description of the robber provided by a witness. The defense sought to preclude the witness’s testimony, arguing a Rosario violation. The trial court denied preclusion but instructed the jury that they could draw an adverse inference against the prosecution. The Court of Appeals affirmed, holding that an adverse inference charge was an appropriate sanction, given the circumstances, for the loss of the Rosario material and that it sufficiently mitigated any potential prejudice to the defendant. The court emphasized that the focus should be on eliminating prejudice to the defendant when Rosario material is lost or destroyed.

Facts

Efraim Gonzalez, a cashier, was threatened during an armed robbery at a cafe.
Gonzalez immediately reported the crime to his manager, Nelson Aleman, who had briefly seen the defendant earlier.
Aleman chased the defendant into the subway and onto a train, where the defendant was arrested by a transit police officer.
At the pretrial Wade hearing, Gonzalez mentioned giving a description of the robber to police officers (Reycraft and Mosely) who responded to the cafe immediately after the robbery.
Officer Reycraft testified that Officer Mosely wrote down Gonzalez’s description, possibly in his memo book or on a “scratch 61” sheet, and immediately broadcast the description over the radio.
Officer Mosely was unavailable at trial, and his notes and any follow-up report could not be located despite intensive investigation.
The defendant was given the Sprint tape of the radio transmission containing the description.

Procedural History

After the jury was sworn, the defense moved to preclude Gonzalez from testifying because the written record of his statement to the investigating police had not been provided.
The trial court held a hearing and denied the motion to preclude Gonzalez’s testimony.
However, the court instructed the jury that they could draw an adverse inference against the prosecution for failing to produce Officer Mosely’s notes.
Defendant appealed the Rosario ruling, and the Appellate Division affirmed.
The case then went to the Court of Appeals.

Issue(s)

Whether the trial court abused its discretion by delivering an adverse inference charge rather than precluding the witness’s testimony as a sanction for the prosecution’s failure to produce Rosario material (Officer Mosely’s notes).

Holding

No, because the adverse inference charge was an appropriate sanction to mitigate any potential prejudice to the defendant arising from the loss of the Rosario material, given that a description of the defendant had been contemporaneously broadcast over the police radio and disclosed to the defendant.

Court’s Reasoning

The Court of Appeals outlined three categories of Rosario violations: (1) delayed disclosure, (2) complete failure to disclose material in the People’s possession, and (3) loss or destruction of evidence.
Regarding lost or destroyed evidence, the court stated that the People have an obligation to preserve evidence until a request for disclosure is made, citing People v. Kelly, 62 N.Y.2d 516, 520 (1984).
The court emphasized that it is not a sufficient response to a demand for production to say that the material has been lost or destroyed.
If the People fail to preserve evidence and the defendant is prejudiced, the court must impose an appropriate sanction. “The determination of what is appropriate is committed to the trial court’s sound discretion, and while the degree of prosecutorial fault may be considered, the court’s attention should focus primarily on the overriding need to eliminate prejudice to the defendant” (quoting People v. Kelly, 62 N.Y.2d at 520-521).
In this case, the trial court’s decision to deny preclusion and instead deliver an adverse inference charge was deemed appropriate.
The court reasoned that the prosecution was apparently unaware of the Rosario material until trial, and the risk of prejudice to the defendant was remote, because the defendant had a tape of the radio transmission containing the description of the defendant.
Under the circumstances, any risk of prejudice was overcome by the adverse inference instruction.