New York Law Review

Tag: Lost Evidence

  • People v. Viruet, 28 N.Y.3d 526 (2016): Adverse Inference Instruction for Lost Evidence

    People v. Viruet, 28 N.Y.3d 526 (2016)

    When the state loses evidence requested by the defendant, and that evidence is reasonably likely to be material, an adverse inference instruction is mandatory if requested.

    Summary

    The New York Court of Appeals addressed whether the trial court erred by denying an adverse inference instruction after the police lost surveillance video of a shooting, which the defendant was charged with committing. The court held that the trial court should have given the instruction because the video was likely to contain material information. However, the court affirmed the conviction because the error was harmless given the strength of the evidence against the defendant, including eyewitness testimony and a confession.

    Facts

    The defendant was charged with second-degree murder after a shooting outside a nightclub. The incident occurred shortly after the defendant’s brother was assaulted. The police obtained surveillance video from the club, but the arresting officer lost the video. The defendant requested the video during discovery and sought an adverse inference instruction based on its absence. The trial court denied the instruction, finding insufficient evidence that the video would have been favorable to the defendant. The Appellate Division affirmed. The defendant appealed.

    Procedural History

    The trial court convicted the defendant of second-degree murder and weapons possession. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the trial court erred by declining to provide an adverse inference instruction to the jury regarding the missing surveillance video, which the defendant requested in discovery.

    Holding

    1. Yes, because the lost video was reasonably likely to be of material importance to the case, the court erred by denying the adverse inference instruction.

    Court’s Reasoning

    The court relied on the precedent set in People v. Handy, which established that when the State destroys evidence, the defendant is entitled to an adverse inference instruction if the evidence was requested, acted upon with due diligence, and was reasonably likely to be of material importance. Here, the court found that the defendant met those conditions. The video could have depicted key events such as the shooting and the positions of witnesses, making it potentially relevant. Even though the prosecution argued it did not intend to use the video, the court found it had an obligation to preserve evidence once the police collected it. Ultimately, the court held that the trial court should have given the instruction.

    The court then considered whether the error was harmless. Quoting People v. Crimmins, the court explained that “errors of law of nonconstitutional magnitude may be found harmless where ‘the proof of the defendant’s guilt, without reference to the error, is overwhelming’ and where there is no ‘significant probability . . . that the jury would have acquitted the defendant had it not been for the error.’” The court found that overwhelming evidence supported the guilty verdict, including eyewitness accounts and a confession. As a result, the error was deemed harmless, and the conviction was upheld.

    Practical Implications

    This case reinforces the importance of preserving potentially relevant evidence, especially video footage, for the prosecution. It clarifies that if the prosecution loses requested evidence that might be helpful to the defendant, they could be forced to give the jury an adverse inference instruction. Defense attorneys can use this ruling to argue for adverse inference instructions when potentially exculpatory evidence is lost or destroyed by the State. This case emphasizes that it is not enough for the prosecution to claim they did not plan to use the evidence; they must still preserve it. When similar cases come before the court, this case should guide the decision on whether an adverse inference is warranted.

  • People v. Martinez, 22 N.Y.3d 551 (2014): Adverse Inference Charge for Lost Evidence

    People v. Martinez, 22 N.Y.3d 551 (2014)

    When Rosario material is lost or destroyed, a sanction is not mandated unless the defendant establishes prejudice; if prejudice is shown, the choice of the proper sanction is left to the trial judge’s discretion.

    Summary

    Defendants Selbin and Christopher Martinez were convicted of attempted robbery. The key issue on appeal was whether the trial court erred in declining to give an adverse inference charge to the jury after a police officer’s handwritten complaint report (scratch 61) was lost. The New York Court of Appeals held that the trial judge did not abuse his discretion because the defendants failed to demonstrate they were prejudiced by the missing document. The court emphasized that the defense must establish prejudice before a sanction is required for lost Rosario material, and the choice of sanction lies within the trial court’s discretion.

    Facts

    Armando Irizarry, Sr., a resident of a public housing building, was accosted in the hallway outside his apartment by two men dressed in black, one with a baseball bat (Selbin) and one with a gun (Christopher). Irizarry recognized Selbin by his walk and Christopher by his movements, which were similar to how he reacted to Irizarry’s dog. Irizarry fought them off, and he and his son fled. Police Officer Franco responded to the scene and interviewed Irizarry. Franco prepared a handwritten complaint report (scratch 61). Selbin was found hiding in a closet in his apartment with a head injury consistent with Irizarry’s account that he struck Selbin with a billiard ball. Christopher was arrested the next day.

    Procedural History

    The defendants were jointly tried and convicted of attempted robbery. During trial, it was revealed that the police officer’s handwritten complaint report (scratch 61) was missing. The defense requested an adverse inference charge, which the trial court denied. The Appellate Division affirmed the convictions. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the trial court abused its discretion by declining to give an adverse inference charge to the jury after a police officer’s handwritten complaint report, considered Rosario material, was lost, when the defense failed to demonstrate prejudice from the loss.

    Holding

    No, because the defendants failed to establish that they were prejudiced by the loss of the scratch 61. The choice of a proper sanction lies within the sound discretion of the trial court.

    Court’s Reasoning

    The Court of Appeals reviewed its prior case law regarding the loss or destruction of Rosario material (statements of a witness that the prosecution must disclose to the defense). The Court emphasized that the per se reversal rule (requiring automatic reversal of a conviction if Rosario material was not disclosed) does not apply when Rosario material is lost or destroyed; rather, a showing of prejudice is required. The Court cited People v. Martinez, 71 N.Y.2d 937 (1988), stating that if the People fail to preserve Rosario material and the defendant is prejudiced, the court must impose an appropriate sanction, focusing primarily on eliminating prejudice. The Court distinguished cases such as People v. Wallace, 76 N.Y.2d 953 (1990) and People v. Joseph, 86 N.Y.2d 565 (1995), where sanctions were called for due to deliberate destruction of Rosario material and demonstrated prejudice.

    In this case, the Court found that the defendants failed to establish prejudice. The defense attorneys requested an adverse inference charge simply because the scratch 61 could not be produced, without articulating any specific potential prejudice. The Court noted the speculative nature of the defendants’ arguments, such as suggesting the scratch 61 might have contained an inconsistent statement from Irizarry. The Court highlighted the legislative intent behind CPL § 240.75, which signals an aversion to per se rules leading to reversal of convictions for Rosario violations.

    The Court concluded that because the defendants did not meet their burden of demonstrating prejudice, the trial court did not abuse its discretion in declining to issue an adverse inference charge. The Court also rejected the defendants’ other claims regarding the sufficiency of the evidence and the propriety of the identification charge.

  • People v. Jackson, 98 N.Y.2d 555 (2002): Effect of Lost Lineup Photo on Appeal

    People v. Jackson, 98 N.Y.2d 555 (2002)

    When a lineup photograph is lost after a Wade hearing, the appellate court must determine if the exhibit is of substantial importance and whether the information it contains is otherwise available in the record; if the information is available, the loss of the exhibit does not prevent proper appellate review.

    Summary

    Ronald Jackson was convicted of robbery, assault, and weapons charges stemming from an armed robbery. The key issue on appeal was the effect of the post-Wade hearing loss of a lineup photograph on the defendant’s challenge to the hearing court’s determination that the lineup was not unduly suggestive. The Court of Appeals held that the loss of the photograph did not automatically require reversal, as long as the information contained in the photograph was otherwise available in the record for appellate review. Because a photocopy of the lineup was available and used at trial, the loss of the original photograph did not prevent meaningful appellate review.

    Facts

    Jackson and a co-defendant robbed two men at gunpoint. Police, responding to the scene, traced the getaway car to the co-defendant’s mother. They found Jackson near the car. The shooting victim described the assailant to police. A detective, noting Jackson’s age, height, and weight, arranged a lineup with four fillers of similar size and skin tone. Jackson chose his position. The detective photographed the lineup and noted the fillers’ ages. The victim identified Jackson in the lineup. Before trial, Jackson moved to suppress the identification testimony, arguing that the fillers were much older. The trial court denied the motion after examining the photograph.

    Procedural History

    The defendant and co-defendant were indicted on multiple counts of robbery and assault. Prior to trial, the defendant moved to suppress the identification testimony from a lineup. The trial court denied the motion. At trial, a detective testified the original lineup photo was misplaced; a photocopy was admitted without objection. The jury convicted Jackson on robbery, assault, and weapons counts but acquitted him of attempted murder. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the loss of a lineup photograph after a Wade hearing automatically requires reversal of a conviction when the defendant argues the lineup was unduly suggestive.

    2. Whether an age discrepancy between a defendant and the fillers in a lineup, without more, is sufficient to create a substantial likelihood that the defendant would be singled out for identification.

    Holding

    1. No, because an appellate court must determine if the exhibit is of ‘substantial importance’ and if the information it contains is accurately reflected in the record. If the information is reflected in the record and its accuracy is not disputed, the loss of the exhibit itself would not prevent proper appellate review.

    2. No, because an age discrepancy alone is not enough to make a lineup unduly suggestive, absent a showing of other factors that would make the defendant stand out.

    Court’s Reasoning

    The Court of Appeals affirmed the conviction, finding that the loss of the lineup photograph did not preclude meaningful appellate review. The Court cited People v. Yavru-Sakuk, 98 N.Y.2d 56 (2002), for the principle that when a trial exhibit is lost, an appellate court must determine if the exhibit is of “substantial importance” to the issues in the case. If so, the court must then determine whether the information contained in the exhibit is accurately reflected elsewhere in the record. Here, the Court found that a photocopy of the lineup photograph, admitted into evidence at trial without objection and used by defense counsel, provided sufficient information for appellate review. The Court emphasized that “an age discrepancy between a defendant and the fillers in a lineup, without more, is not ‘sufficient to create a substantial likelihood that the defendant would be singled out for identification’ (Chipp, 75 NY2d at 336).” The Court also noted that the victim never mentioned the perpetrator’s age in the description provided to police. The Court cautioned that the original lineup photograph is preferable and that counsel and trial courts should take great care in preserving exhibits that play a key role in a defendant’s case.

  • People v. Yavrucak, 98 N.Y.2d 56 (2002): Effect of Lost Evidence on Appeal

    People v. Yavrucak, 98 N.Y.2d 56 (2002)

    The loss of a trial exhibit does not automatically warrant reversal of a conviction; an appellate court must determine the exhibit’s importance and whether the information it contained can be gleaned from the existing record.

    Summary

    A dentist was convicted of sexual abuse. A key piece of evidence, a tape recording of a phone call where the victim confronted the dentist, was lost before the appeal. The Appellate Term reversed the conviction due to the lost evidence, stating meaningful appellate review was impossible. The Court of Appeals reversed the Appellate Term’s decision, holding that the loss of a trial exhibit does not automatically warrant reversal. The Court outlined a process for determining if the lost evidence was critical and whether its contents could be reconstructed or found elsewhere in the record.

    Facts

    A 17-year-old girl accused her dentist, Yavrucak, of sexual abuse during a dental appointment. Months later, she reported the incident. Police had her call Yavrucak while recording the conversation. At trial, the recording was admitted as evidence. Yavrucak testified that he was shocked by the allegations and could not freely discuss them during the call due to others being present. He admitted to telling the complainant that “there is a misunderstanding; there is a mistake… I am sorry for the way you feel, okay” and “it was not my intent.”

    Procedural History

    The trial court found Yavrucak guilty of sexual abuse. Yavrucak appealed to the Appellate Term, arguing the trial court erred in denying his request to admit expert testimony on a polygraph exam and that the evidence was legally insufficient. The Appellate Term reversed the conviction sua sponte due to the loss of the tape recording, deeming it “critical”. The People appealed to the Court of Appeals.

    Issue(s)

    Whether the loss on appeal of a trial exhibit—a tape recording of a conversation in which the defendant responded to the victim’s allegations of abuse—warranted summary reversal of the defendant’s conviction.

    Holding

    No, because the loss of a trial exhibit does not automatically deprive a defendant of effective appellate review. An appellate court must determine whether the exhibit has “substantial importance” to the issues in the case and whether the record otherwise reflects the information contained within the exhibit.

    Court’s Reasoning

    The Court of Appeals relied on precedent, particularly People v. Strollo and People v. Glass. The court emphasized that there is a presumption of regularity in judicial proceedings, and the unavailability of an exhibit does not automatically rebut that presumption. The defendant has the burden to show that alternative methods to provide an adequate record are unavailable. The Court outlined a framework for appellate courts to use when a trial exhibit is lost. First, the court must determine if the exhibit has “substantial importance” to the issues on appeal. If so, the court must then determine if the record otherwise reflects the information in the exhibit. If the information is in the record and its accuracy is undisputed, the loss of the exhibit does not prevent appellate review. If the information is important but not in the record, a reconstruction hearing should be ordered unless the defendant shows it would be futile. The Court found it was not clear that the tape recording was necessary for effective appellate review, given the victim’s testimony and the trial court’s characterization of the tape as “the icing on the cake.” The Court also noted that the defendant himself testified to his responses on the tape, and the Appellate Term failed to consider whether the tape’s contents could have been reconstructed. The case was remitted to the Appellate Term to determine the need for the tape and whether a reconstruction hearing would be futile.

  • People v. Haupt, 71 N.Y.2d 929 (1988): Consequences of Lost Rosario Material

    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.

  • People v. Kelly, 62 N.Y.2d 516 (1984): Sanctions for Failure to Preserve Evidence

    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.”