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FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION.

The Fourth Department, reversing the conviction, over a concurrence, determined defendant was entitled to an adverser inference jury instruction based upon the failure to preserve surveillance videos:

We agree with defendant that the court erred in refusing to give an adverse inference charge based on the People's failure to preserve surveillance tapes … . Defendant used reasonable diligence in requesting those tapes, which captured “evidence that [was] reasonably likely to be of material importance” …, i.e., a video in the area where the crime occurred, from cameras operated by the City of Rochester Police Department.

We respectfully disagree with our concurring colleague that the State's duty to preserve surveillance videos is not triggered until a request has been made by the defendant. People v Butler, 2016 NY Slip Op 04512, 4th Dept 6-10-16

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