People v. Kelly, 62 N.Y.2d 516 (1984)
When the prosecution fails to preserve discoverable evidence, the court must fashion an appropriate sanction to eliminate prejudice to the defendant while protecting society’s interests; dismissal of charges is a drastic remedy that should only be invoked when less severe measures cannot rectify the harm.
Summary
Nathaniel Kelly and Angel Marrero were charged with criminal possession of stolen property and petit larceny after allegedly stealing from an undercover officer. The police recovered a wallet and $22, but then returned the evidence to the decoy officer, resulting in its irretrievable loss. The defendants moved to dismiss the charges, arguing that the lost evidence hindered their ability to assert an entrapment defense. The trial court granted the motion, and the appellate term affirmed. The New York Court of Appeals reversed, holding that dismissal was an abuse of discretion because less drastic sanctions could have cured any prejudice to the defendants. The court emphasized that the primary concern is to eliminate prejudice to the defendant while protecting society’s interests.
Facts
Defendants Kelly and Marrero allegedly stole a wallet containing $22 from an undercover police officer.
The recovered wallet and cash, consisting of one $20 bill and two $1 bills, were vouchered but then immediately returned to the decoy officer according to police practice.
The evidence was irretrievably lost.
Defendants claimed the $20 bill was doctored from a $1 bill to resemble a $20, suggesting police inducement and entrapment.
Procedural History
The Criminal Court granted the defendants’ motion to dismiss the charges due to the lost evidence.
The Appellate Term affirmed the Criminal Court’s decision without opinion.
The New York Court of Appeals reversed the Appellate Term’s order, reinstated the informations, and remitted the case to the Criminal Court for further proceedings.
Issue(s)
Whether dismissal of two informations was an appropriate response to the prosecution’s wrongful failure to preserve discoverable evidence, where less drastic sanctions could have cured any prejudice to the defendants.
Holding
No, because the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence.
Court’s Reasoning
The Court of Appeals held that the People had a duty to preserve discoverable evidence. The court noted that the intentional relinquishment of the wallet and currency was inexcusable, even if the police practice of returning property in decoy cases demonstrated the absence of any intent to harm the defendants. The court stated, “A necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made.”
The court emphasized that CPL 240.70(1) requires an “appropriate” response to the prosecution’s wrongful failure to preserve evidence. While prosecutorial fault may be considered, “the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society.” The Court cited various sanctions imposed in other cases, including reducing charges, precluding witnesses from testifying, ordering reconstruction hearings, and issuing unfavorable inference charges.
The court reasoned that dismissal was not necessary in this case because less severe measures could rectify any prejudice to the defendants. The court reasoned that defendants’ argument that the money was intentionally placed in a highly visible position was not something the People would likely dispute at trial. The court also stated that any potential issues of impeaching the credibility of police officers could be addressed through jury instructions as to the bogus nature of the bill used. The Court indicated that the lower court could have instructed the jury to draw an adverse inference against the prosecution on account of the missing evidence.
The Court concluded that while the choice of “appropriate” action is committed to the sound discretion of the trial court, “as a general matter the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence.”