Destruction of Video that May Have Been Relevant to the Defense Required Adverse Inference Charge

The defendant was charged with (and convicted of) assaulting jail deputies.  A video which may have captured at least some of the incidents was destroyed by “recording over” after 30 days, a jail policy. A request for any relevant electronic surveillance was made in the omnibus motion.  The indictment included incidents in November, 2006, and January, 2007. By the time the omnibus motion was made, only the video of the January incident was still available (pursuant to the 30-day “record over” policy).  The trial court agreed to give an adverse inference charge with respect to the January incident, but refused to give the adverse inference charge for the November incident.  The appellate division determined the adverse inference charge needn’t have been given because there was no evidence the video evidence would have been exculpatory.  In a full-fledged opinion by Judge Smith, the Court of Appeals reversed, finding the law of evidence required that the adverse inference charge be given:

We resolve this case, following the approach taken by the Maryland Court of Appeals in Cost v State (417 Md 360, 10 A3d 184 [2010]) by holding that, under the New York law of evidence, 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.  People v Handy, 35, CtApp 3-28-13