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REVOLVER FOUND BY A PASSERBY SEVEN BLOCKS FROM THE CRIME SCENE SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR DEEMED HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined a revolver found by a passerby seven blocks from the scene of the crime should not have been admitted in evidence. The error was harmless however:

Supreme Court should not have admitted into evidence a revolver that was recovered by the police from underneath a vehicle five to seven blocks away from the scene of the crime and approximately seven hours after the shooting. The revolver was discovered by a passerby, who notified the police. “When real evidence is purported to be the actual object associated with a crime, the proof of accuracy has two elements. The offering party must establish, first, that the evidence is identical to that involved in the crime; and, second, that it has not been tampered with” … . At trial, the only eyewitness at the scene of the shooting who observed the defendant armed with a firearm testified that the defendant was armed with a “[s]ilver, long barrel” revolver. Contrary to the court’s determination, although that testimony was somewhat consistent with the defendant’s description of his revolver, it was insufficient to provide reasonable assurances that the revolver that was admitted into evidence was the same revolver used by the defendant during the shooting … . No forensic evidence was recovered from the subject revolver linking it to the defendant, and more significantly, the eyewitness was never asked, either by the police after the revolver was recovered or by the prosecution at trial, to identify the revolver as the “actual object” used by the defendant during the shooting … . Further, there was no evidence in the record to support the court’s independent observation that the revolver that was admitted into evidence was “very uncommon” and a “very, very unique gun.” People v Deverow, 2020 NY Slip Op 01359, Second Dept 2-26-20

 

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