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PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department, reversing County Court, determined the search of defendant’s person after traffic stop was not supported by proof of a valid warrant for defendant’s arrest. Defendant was a passenger in a car stopped by a sheriff’s deputy. The driver was arrested for driving without a license. The deputy then checked the defendant’s “data” and found defendant did not have a license and  there was a warrant for defendant. The defendant was then taken into custody on the warrant and cocaine was found in a pat-down search. The People did not demonstrate that the warrant was valid at the time of the arrest. County Court ruled the search was a valid “safety pat-down” before placing defendant in the police car:

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We agree with defendant that the court erred in upholding the search on the ground that it was a lawful “safety pat-down.” There was no evidence in the record of the hearing to support a conclusion that “defendant had a weapon or was a threat to [the deputy’s] safety” … . Moreover, “[a]lthough a police officer may reasonably pat down a person before he [or she] places [that person] in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing [the person] in the police car in the first place” … . Here, the People failed to establish the legitimacy of placing defendant in the patrol vehicle. First, the People failed to establish “the existence of a validly-issued and outstanding warrant” … . Once defendant challenged the validity of the warrant by questioning the deputy concerning the status of the warrant and whether it was still valid, the People were “required to make a further evidentiary showing by producing the . . . warrant” (id.). The People did not do so. Thus, without establishing the existence of a valid and outstanding warrant, the People failed to establish the legitimacy of placing defendant in the patrol vehicle … . Although defendant, who did not have a valid driver’s license, could not have driven the stopped vehicle from the scene after the arrest of the driver, the deputy testified that, in the absence of a warrant, defendant could have called for someone to pick him up and therefore could have lawfully refused to be transported away from the scene in the patrol vehicle. People v Richards, 2017 NY Slip Op 04668, 4th Dept 6-9-17

CRIMINAL LAW (PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, PAT-DOWN SEARCH, PEOPLE DID NOT DEMONSTRATE THE WARRANT WHICH WAS THE BASIS FOR DEFENDANT’S ARREST WAS VALID, THE PAT-DOWN SEARCH WAS NOT JUSTIFIED AS A SAFETY MEASURE, SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED)

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PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY NEED TO EVALUATE THE EFFECT OF THE ERRORS ON THE CONVICTION.

The Fourth Department reversed defendant’s conviction because of the prosecutor’s misconduct:

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During jury selection, the prosecutor improperly inquired if defendant “look[ed] like an arsonist” because she was dressed in red-colored clothing. During cross-examination, the prosecutor improperly questioned defendant on her inability to make bail, thus indicating that defendant was incarcerated … , and improperly questioned defendant about the conviction of her codefendant husband of the same crime … . The prosecutor also improperly questioned defendant concerning the criminal history of her husband … During summation, the prosecutor commented on the failure of defendant’s husband to testify regarding her financial condition, again implying that her husband had been convicted of the same crime and was incarcerated … . Although County Court sustained many of defense counsel’s objections and gave curative instructions, we cannot conclude on this record that any resulting prejudice was alleviated… .Moreover, even when a trial court repeatedly sustains a defendant’s objections and instructs the jury to disregard certain remarks by the prosecutor, “[a]fter a certain point, . . . the cumulative effect of a prosecutor’s improper comments . . . may overwhelm a defendant’s right to a fair trial”… , and that is the case here. We therefore “must reverse the conviction and grant a new trial, . . . without regard to any evaluation as to whether the errors contributed to . . . defendant’s conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right”  … . People v Hayward-Crawford, 2017 NY Slip Op 04581, 4th Dept 6-9-17

CRIMINAL LAW (ATTORNEYS, PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/ATTORNEYS (CRIMINAL LAW. PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY EVALUATION OF THE EFFECT OF THE ERRORS ON THE CONVICTION)

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WHEN DEFENDANT INDICATED AT SENTENCING HE WAS NOT INVOLVED IN ONE OF THE RELEVANT OFFENSES THE SENTENCING JUDGE SHOULD HAVE QUESTIONED THE DEFENDANT ABOUT WHETHER HIS WISHED TO WITHDRAW HIS PLEA, FAILURE TO DO SO REQUIRED REVERSAL.

The Third Department determined statements made by the defendant at his sentencing, denying involvement in at least one of the relevant offenses, raised questions about whether plea was voluntary and required further inquiry, including whether defendant wished to withdraw his plea:

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… [W]hile the issue most often arises during the plea allocution… , the Court of Appeals has recognized that a defendant may negate an element of the crime to which a plea has been entered or make a statement suggestive of an involuntary plea at postplea proceedings, including sentencing, which may require the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea … . …

… [W]hen confronted by County Court with the fact that he had pleaded guilty to assault in the first degree, which requires intent to cause serious physical injury to another person … , defendant asserted that it was his deceased friend who “actually did the shooting” and that he “was at the wrong place at the wrong time.” County Court recognized that defendant was denying the intentional assault, but it made no further inquiry. County Court proceeded to sentencing without providing defendant with an opportunity to withdraw his guilty plea. This was error. Although defendant did not preserve his challenge to the voluntariness of his plea by making a motion to withdraw his plea, his statements at sentencing triggered the exception to the preservation requirement … .. While defendant’s remarks did not necessarily implicate all of the crimes to which he pleaded guilty, because it was an integrated plea agreement with a promised aggregate sentence, the judgment must be reversed in its entirety … . People v Gresham, 2017 NY Slip Op 04498, 3rd Dept 6-8-17

 

SENTENCING (DENIAL OF INVOLVEMENT, WITHDRAWAL OF PLEA, WHEN DEFENDANT INDICATED AT SENTENCING HE WAS NOT INVOLVED IN ONE OF THE RELEVANT OFFENSES THE SENTENCING JUDGE SHOULD HAVE QUESTIONED THE DEFENDANT ABOUT WHETHER HIS WISHED TO WITHDRAW HIS PLEA, FAILURE TO DO SO REQUIRED REVERSAL)/CRIMINAL LAW (SENTENCING, DENIAL OF INVOLVEMENT, WITHDRAWAL OF PLEA,WHEN DEFENDANT INDICATED AT SENTENCING HE WAS NOT INVOLVED IN ONE OF THE RELEVANT OFFENSES THE SENTENCING JUDGE SHOULD HAVE QUESTIONED THE DEFENDANT ABOUT WHETHER HIS WISHED TO WITHDRAW HIS PLEA, FAILURE TO DO SO REQUIRED REVERSAL) )/JUDGES (CRIMINAL LAW, SENTENCING, DENIAL OF INVOLVEMENT, WITHDRAWAL OF PLEA, WHEN DEFENDANT INDICATED AT SENTENCING HE WAS NOT INVOLVED IN ONE OF THE RELEVANT OFFENSES THE SENTENCING JUDGE SHOULD HAVE QUESTIONED THE DEFENDANT ABOUT WHETHER HIS WISHED TO WITHDRAW HIS PLEA, FAILURE TO DO SO REQUIRED REVERSAL)

MOTION TO CONDITIONALLY SEAL RECORD OF A MISDEMEANOR DRUG CONVICTION SHOULD HAVE BEEN REVIEWED AND GRANTED.

The Third Department determined defendant’s motion to have the record of her drug offense sealed pursuant to Criminal Procedure Law (CPL 160.58 should have been reviewed and granted. County Court refused to consider the motion because defendant’s plea agreement did not address conditional sealing of the record. But CPL 160.58 had not been enacted at the time of the plea:

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The record establishes that defendant’s misdemeanor conviction is her sole criminal offense, she has not been arrested since 2008, she has successfully completed the drug court program (thereby avoiding incarceration), she has obtained a college degree and maintained gainful employment and she continues to participate in Narcotics Anonymous. Further, although defendant has received a certificate of relief from civil disabilities, her criminal record is likely to be an impediment to both the furtherance of her career and her future employment prospects. In view of the foregoing, and given that the People now concur with the relief requested by defendant, her motion should be granted and the record of her criminal conviction conditionally sealed pursuant to CPL 160.58. People v Jihan Qq., 2017 NY Slip Op 04524, 3rd Dept 6-8-17

CRIMINAL LAW (SEALING RECORD, MOTION TO CONDITIONALLY SEAL RECORD OF A MISDEMEANOR DRUG CONVICTION SHOULD HAVE BEEN REVIEWED AND GRANTED)/SEALING RECORDS (CRIMINAL LAW, MOTION TO CONDITIONALLY SEAL RECORD OF A MISDEMEANOR DRUG CONVICTION SHOULD HAVE BEEN REVIEWED AND GRANTED)

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CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that a contempt order in a civil proceeding involving the same funds defendant was accused of stealing in the criminal action: (1) was not Molineux evidence because it involved the same subject matter as did the criminal action; and (2) the probative value of the order on the question of intent outweighed its prejudicial effect:

“When we limit Molineux or other propensity evidence, we do so for policy reasons, due to fear of the jury’s human tendency to more readily believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” … . In other words, the courts limit the admission of Molineux evidence because of the danger that the jury might conclude that if the defendant did it once, he or she likely did it again.

Where, as here, the evidence at issue is relevant to the very same crime for which the defendant is on trial, there is no danger that the jury will draw an improper inference of propensity because no separate crime or bad act committed by the defendant has been placed before the jury. * * *

The Appellate Division correctly concluded that the contempt order was relevant to prove defendant’s larcenous intent because “it showed that defendant’s conduct did not merely constitute poor financial management but, rather, that defendant, through his businesses, intended to deprive [the business entity] of the diverted money permanently” … . People v Frumusa, 2017 NY Slip Op 04495, CtApp 6-8-17

CRIMINAL LAW (EVIDENCE, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/EVIDENCE (CRIMINAL LAW, MOLINEUX, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/MOLINEUX EVIDENCE (CRIMINAL LAW, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)

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TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, with two concurring opinions, determined the trial judge properly resettled the record of the trial without holding a hearing. The original transcript indicated the jury was instructed the defendant was charged with “unintentional” murder. The prosecutor submitted an affirmation based upon a conversation with the court stenographer stating that the word “unintentional” was a typographical error and the stenographic notes reflected the word “intentional” was actually used. The stenographer submitted a certified corrected transcript:

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Several factors support the Appellate Division’s conclusion that Supreme Court acted within its discretion to resettle the transcript on the basis of the information before it. The trial judge could rely not only on the reporter’s certification of the corrected transcript, but also on undisputed portions of that transcript, including: the accurate balance of the charge; the fact that two of the five alleged misstatements were attributed to defense counsel, not the court; and, most significantly, the repeated failure of any party to object to what would have been prominent misstatements of the law. Furthermore, as there was no suggestion during oral argument on the motion that any person present at the trial five years earlier could recollect what words were spoken, it is not clear what evidence beyond the reporter’s original stenographic notes might have been obtained through a hearing.

Although it would have been preferable for the court to have received an affidavit from the court reporter, rather than an affidavit of counsel recounting a conversation with that reporter, we cannot say that Supreme Court acted outside its discretion to resettle the transcript without a hearing. People v Bethune, 2017 NY Slip Op 04493, CtApp 6-8-17

 

CRIMINAL LAW (RESETTLING THE RECORD, TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING)/APPEALS (CRIMINAL LAW, RESETTLING THE RECORD, TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING)

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined defense counsel was not ineffective for failing to object to evidence the complainant, who alleged she was sexually abused by the defendant many years earlier, disclosed the abuse to friends three years after the abuse ceased and again four years later. Defense counsel’s strategy was to show the complainant was a “troubled teen” and inconsistencies in the statements were part of a “recent fabrication” defense:

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Here, defendant argues that counsel’s failure to object to the testimony regarding the victim’s disclosures must have arisen from his ignorance or misunderstanding of the law on prompt outcry testimony and, thus, cannot be considered a matter of strategy. We disagree. While “it is generally improper to introduce testimony that the witness had previously made prior consistent statements” to bolster the witness’s credibility, the use of prior consistent statements is permitted to demonstrate a prompt outcry, rebut a charge of recent fabrication, or “to assist in ‘explaining the investigative process and completing the narrative of events leading to defendant’s arrest'” … . “‘New York courts have routinely recognized that nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'”… .

A conclusion that the fact of the victim’s disclosures herein to the school counselor and detective would likely be admissible to “complete the narrative” was “consistent with [a conclusion that] a reasonably competent attorney” could make  … . … [C}ounsel was not ineffective for failure to make a motion that had little chance of success …. Instead of objecting to that testimony, counsel strategically chose to use the evidence to defendant’s advantage by exploring the substance of, and the circumstances surrounding, the disclosure in depth to support the defense of recent fabrication. People v Honghirun, 2017 NY Slip Op 04496, CtApp 6-8-17

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, EVIDENCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)EVIDENCE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DELAYED DISCLOSURE OF SEXUAL ABUSE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)

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EXCESSIVE INTERFERENCE BY THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL.

The Second Department determined excessive interference by the judge deprived defendant of a fair trial:

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“Trial judges have wide discretion in directing the presentation of evidence but must exercise that discretion appropriately and without prejudice to the parties” … . While “neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process,” the court’s discretion in this area is not unfettered … . “The overarching principle restraining the court’s discretion is that it is the function of the judge to protect the record at trial, not to make it. Although the law will allow a certain degree of judicial intervention in the presentation of evidence, the line is crossed when the judge takes on either the function or appearance of an advocate at trial” … . Thus, while there is no absolute bar to a trial court asking a particular number of questions of the witnesses in order to advance the goals of truth and clarity, a court may not “assume the advocacy role traditionally reserved for counsel, and in order to avoid this, the court’s discretion to intervene must be exercised sparingly” … .

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Here, notwithstanding numerous objections by defense counsel, the Supreme Court exercised little or no restraint in questioning the witnesses at length and improperly “assume[d] the advocacy role traditionally reserved for counsel” (id.). We acknowledge that this trial was lengthy because it involved three codefendants and multiple complainants. However, contrary to the People’s contention, the court’s questioning of the witnesses far exceeded what was necessary to “clarify[ ] confusing testimony” or facilitate “the orderly and expeditious progress of the trial” … . The court engaged in protracted and often unnecessary questioning on both direct and cross-examination, and at times acted as an advocate for the People … . People v Robinson, 2017 NY Slip Op 04473, 2nd Dept 6-7-17

 

CRIMINAL LAW (JUDGES, EXCESSIVE INTERFERENCE BY THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL)/JUDGES (CRIMINAL LAW, EXCESSIVE INTERFERENCE BY THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL)

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BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW.

The First Department, reversing the denial of defendant’s motion to suppress his statements, over a two justice dissent, determined the detective’s mention of a drug offense for which defendant was represented by counsel during questioning on a homicide required suppression of the interrogation:

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Although the reference to the drug charges on which defendant was represented was brief and flippant, it was not, in context, innocuous or discrete and fairly separable from the homicide investigation. The detective told defendant during the questioning that he knew defendant was involved in selling drugs at the location of the murder and that the killing was over a drug debt. The remarks regarding the pending drug case went to defendant’s alleged participation in the drug trade at the location of the homicide, the very activity out of which a motivation for killing the victim arose. Indeed, it succeeded in eliciting from defendant a response that may fairly be interpreted as incriminating himself in dealing drugs at the location, the alleged motivation and context out of which the homicide occurred. Accordingly, because questioning regarding the drug case on which defendant was represented by counsel was intertwined with questioning regarding the homicide, defendant’s statements should have been suppressed.

However, we find no other basis for suppression. As the dissent notes, the repeated comments made to defendant by the detective and his colleagues to the effect that defendant should “tell [his] side of the story” immediately because if he were to wait until trial, “[no] one is going to believe” him and he would be “charged with murder, not . . . manslaughter” did not vitiate the Miranda warnings defendant had received … . People v Silvagnoli, 2017 NY Slip Op 04392, 1st Dept 6-6-17

 

CRIMINAL LAW (SUPPRESSION OF STATEMENT, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/EVIDENCE (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/ATTORNEYS (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)/RIGHT TO COUNSEL (CRIMINAL LAW, SUPPRESSION, BRIEF MENTION OF AN OFFENSE FOR WHICH THE INTERROGATING DETECTIVE KNEW DEFENDANT WAS REPRESENTED BY COUNSEL TAINTED THE INTERROGATION AND REQUIRED SUPPRESSION OF THE INTERVIEW)

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POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two judge dissenting opinion authored by Judge Wilson, determined defendant was entitled to an adverse inference charge with respect to the loss of video of a shooting, but that the failure to so charge the jury was harmless error under the facts. The defendant allegedly fired shots from across the street toward the entrance of a club. The video would have shown the victim and witnesses near the club entrance, but not the shooter:

Once the police collected the video, the People had an obligation to preserve it … .

Under these circumstances — where defendant acted with due diligence by requesting the evidence in discovery and the lost evidence was video footage of the murder defendant was charged with committing — it cannot be said that the evidence was not “reasonably likely to be of material importance” (Handy, 20 NY3d at 665). According to the trial testimony, the camera captured the moment when the victim was shot and the location of the two eyewitnesses at the time of the shooting. There was also testimony that the video contained footage of people going in and out of the club throughout the course of the night, making it at least possible that the video captured the earlier incident involving defendant and the bouncer — a key issue in the sequence of events. Contrary to the determination of the Appellate Division, a video of the shooting and of the eyewitnesses at or around the time of the murder is certainly “relevant to the case” … and is sufficient to satisfy the standard set out in Handy. Moreover, as in Handy, testimony concerning what appeared on the video came in large part from a witness whose own actions “created the need to speculate about its contents” … . Accordingly, the trial court erred in failing to give an adverse inference instruction. People v Viruet, 2017 NY Slip Op 04386, CtApp 6-6-17

 

CRIMINAL LAW (POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)/EVIDENCE (CRIMINAL LAW, POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)/ADVERSE INFERENCE JURY INSTRUCTION (CRIMINAL LAW, POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)

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