98 N.Y.2d 280 (2002)

A trial court has discretion in determining the appropriate sanction for a party’s failure to comply with discovery mandates, and preclusion of evidence is a severe sanction that should not be employed unless any potential prejudice cannot be cured by a lesser sanction.

Summary

Kevin Jenkins was convicted of second-degree murder. Prior to trial, defense counsel requested any ballistics reports related to the case. The prosecution contended it disclosed the report within a large packet of materials before trial, a claim disputed by the defense. On the fourth day of trial, the defense received the ballistics report, which indicated that all 20 shell casings found at the scene came from one gun. The defense moved to preclude the evidence, arguing it undermined their theory of multiple shooters. The trial court denied the motion, offering an adjournment which the defense rejected. The Court of Appeals affirmed, holding that the trial court did not abuse its discretion because the defendant was not unduly prejudiced by the late disclosure.

Facts

Mark Carroll told Carl Grant that he could no longer sell drugs on a particular corner. Grant returned with others; a fight ensued, and Jenkins allegedly shot and killed Carroll, wounding three others. The prosecution argued Jenkins was the sole shooter. Jenkins claimed eyewitnesses falsely identified him and that Carroll was caught in a crossfire between rival groups. A ballistics report indicated 20 shells of the same caliber were discovered at the scene and came from one gun.

Procedural History

Following his conviction for second-degree murder in the Kings County Supreme Court, Jenkins appealed, arguing the trial court erred in denying his motion to preclude the ballistics report evidence. The Appellate Division affirmed the trial court’s decision. Jenkins appealed to the New York Court of Appeals.

Issue(s)

Whether the trial court abused its discretion by denying defendant’s motion for preclusion of evidence contained in a ballistics report that was allegedly first disclosed after defendant had begun to present his defense.

Holding

No, because the trial court did not abuse its discretion in determining that defendant was not unduly prejudiced by the late disclosure, and preclusion is a severe sanction not to be employed unless the prejudice cannot be cured by a lesser sanction.

Court’s Reasoning

Criminal Procedure Law § 240.20(1)(c) requires the People to produce scientific reports upon demand. CPL § 240.70(1) allows the court to order discovery, grant a continuance, issue a protective order, prohibit the introduction of evidence, or take other appropriate action if a party fails to comply with discovery mandates. The Court emphasized that preclusion of evidence is a severe sanction and the overriding concern is to eliminate prejudice to the defendant while protecting society’s interests, citing People v. Kelly, 62 N.Y.2d 516, 520 (1984) (“[T]he overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society”).

The court reasoned that even with the ballistics report, the defense could still argue multiple shooters because the expert could not conclude that the bullet recovered from the victim came from the same gun as the casings. The court also noted the defense knew of the report but did not renew their request or seek a court order. Further, the trial court offered a continuance for review, which the defense rejected. The Court distinguished this case from People v. Thompson, 71 N.Y.2d 918 (1988), where untimely disclosure of Rosario material completely negated the defendant’s sole defense.