DEFENDANT ENTITLED TO PERMISSIVE ADVERSE INFERENCE JURY INSTRUCTION BASED UPON THE PEOPLE’S LOSS OR DESTRUCTION OF EVIDENCE REQUESTED BY THE DEFENDANT (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the permissive adverse inference jury instruction should have been given because of the loss or destruction of evidence requested by the defendant:

The defendant contends that the Supreme Court should have granted his request for a permissive adverse inference charge with respect to the People’s failure to turn over duly requested tape recordings and any other police records related to taped interactions between the undercover officer and a witness to the March 4, 1998, sale, who was also the defendant’s unindicted co-defendant. ” A permissive adverse inference instruction typically serves as either: (1) a penalty for the government’s violation of its statutory and constitutional duties or its destruction of material evidence; or (2) an explanation of logical inferences that may be drawn regarding the government’s motives for failing to present certain evidence at trial'” …

We agree with the defendant that the Supreme Court should have granted his request for a permissive adverse inference charge based upon the People’s loss or destruction of the material requested by the defendant … . “[A] permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State”… . Although the prosecutor stated that the missing tapes were unrelated to the sales at issue and were not recorded on the dates of the buys, he concededly never listened to them. Additionally, the officer who relayed the information that the tapes were not recorded on the dates of the buys to the prosecutor did not testify at trial. People v Torres, 2019 NY Slip Op 01434, Second Dept 2-27-19