The People, Respondent,v.Dayshawn P. Handy, Appellant.BriefN.Y.February 6, 2013 To Be Argued By: JANET C. SOMES Assistant Public Defender Requested Time: 10 Minutes STATE OF NEW YORK * COURT OF APPEALS ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- DAYSHAWN P. HANDY, Appellant. ___________________________________________________ BRIEF FOR APPELLANT TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JANET C. SOMES Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4329 Fax: (585) 753-4234 Brief Completed: May 24, 2012 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i - xi QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 2 STATEMENT OF FACTS 4 A. Introduction 4 B. The Prosecution Witnesses’ Version of Events 5 C. The Defense’s Version of Events 6 D. The Surveillance Recordings 7 E. Motion for Trial Order of Dismissal 11 F. The Verdict and Sentence 12 POINT ONE: THE PEOPLE FAILED TO PRESENT LEGALLY SUFFICIENT EVIDENCE OF INTENT TO CAUSE PHYSICAL INJURY. 13 A. Introduction 13 B. Mr. Handy’s Argument is Preserved for Review. 14 C. The Prosecution Failed To Present Legally Sufficient Evidence From Which To Infer Intent To Cause Injury. 15 POINT TWO: THE TRIAL COURT’S FAILURE TO IMPOSE ANY SANCTION FOR THE PROSECUTION’S FAILURE TO PRESERVE MATERIAL AND CRITICAL EVIDENCE REQUIRES REVERSAL. 24 A. Introduction 24 B. Mr. Handy, like Mr. Rosario, has identified an “Important Problem in the Administration of the Criminal Law” that can easily be resolved by this Court. 30 C. As a Matter of New York Law, Fundamental Fairness and the Interests of Justice Require Discovery and Preservation of Recordings that Capture Activity that Becomes the Basis of a Criminal Prosecution When Created by or in Possession of Law Enforcement Authorities, and that Sanctions be Imposed to Eliminate the Prejudice Incurred When Such Recordings are Lost or Destroyed, unless the People can Demonstrate that the Defense was not Prejudiced by the Loss. 35 D. Mr. Handy has been Denied Access to “Material” Evidence. 54 E. The Trial Court’s Failure to Impose any Sanction for the Lost or Destruction of the November 8th Videotape(s) Requires Reversal. 63 F. Conclusion 72 CONCLUSION 74 i TABLE OF AUTHORITIES Federal Cases Arizona v Youngblood, 488 US 51 [1988] ......................................................................................... passim Brady v Maryland, 373 US 83 [1963] ......................................................................................... passim California v Trombetta, 467 US 479 [1984] ........................................................................................ 42, 48 Illinois v Fisher, 540 US 544 [2004] ........................................................................................ 37, 39 Jackson v Virginia, 443 US 307 [1979] ...............................................................................................13 Jencks v United States, 353 US 657 [1957] ...............................................................................................31 Napue v Illinois, 360 US 264 [1959] ...............................................................................................45 Pennsylvania v Ritchie, 480 US 39 [1987] .......................................................................................... 53, 54 Roviaro v United States, 353 US 53 [ 1957] ................................................................................................51 United States v Agurs, 427 US 97 [1976] .................................................................................................47 United States v Bryant, 439 F2d 642 [DC Cir 1971] ..................................................................................48 ii United States v Valenzuela-Bernal, 458 US 858 [1982 ] .............................................................................................36 New York State Cases Barone v City of New York, 52 AD3d 630 [2d Dept 2008] ...............................................................................69 Enstrom v Garden Place Hotel, 27 AD3d 1084 [4th Dept 2006] ............................................................................68 Iannucci v Rose, 8 AD3d 437 [2d Dept 2004] .................................................................................68 Matter of Rodriguez v Coombe, 238 AD2d 691 [3d Dept 1997] .............................................................................69 Minaya v Duane Reade International, Inc., 66 AD3d 402 [1st Dept 2009] ..............................................................................68 People v Abar, 42 AD3d 676 [3d Dept 2007] ...............................................................................21 People v Adams, 81 AD3d 1427 [4th Dept 2011] ............................................................................68 People v Allgood, 70 NY2d 812 [1987] .............................................................................................41 People v Alvarez, 70 NY2d 375 [1987] ...................................................................................... 42, 54 People v Anderson, 222 AD2d 442 [2d Dept 1995] .............................................................................56 People v Austin, 152 AD2d 590 [2d Dept 1989] .............................................................................43 iii People v Bailey, 13 NY3d 67 [2009] ...............................................................................................21 People v Banks, 2 AD3d 266 [1st Dept 2003] ................................................................................34 People v Barber, 247 AD2d 485 [2d Dept 1998] .............................................................................60 People v Barnwell, 4 NY3d 303 [2003] ........................................................................................ 49, 59 People v Bellamy, 158 AD2d 525 [2d Dept 1990] .............................................................................42 People v Branch, 80 NY2d 610 [2002] .............................................................................................50 People v Bridges, 184 AD2d 1042 [4th Dept 1992] ..........................................................................42 People v Brister, 239 AD2d 513 [2d Dept 1997] .............................................................................60 People v Brock, 246 AD2d 406 [1st Dept 1998] ............................................................................34 People v Brooks, 57 AD3d 445 [1st Dept 2008] ..............................................................................34 People v Brown, 99 NY2d 488 [ 2003] ............................................................................................71 People v Bryce, 88 NY2d 124 [1996] .............................................................................................36 People v Bueno, 18 NY3d 160 [2011] ...................................................................................... 19, 20 iv People v Callendar, 207 AD2d 900 [2d Dept 1994] .............................................................................43 People v Carpenter, 88 AD3d 1160 [3d Dept 2011] .............................................................................59 People v Conley, 70 AD3d 961 [2d Dept 2010] ...............................................................................67 People v Consolazio, 40 NY2d 446 [1976] ............................................................................................66 People v Contes, 60 NY2d 620 [1983] .............................................................................................13 People v Danielson, 9 NY3d 342 [2007] ...............................................................................................13 People v Diaz, 47 AD3d 500 [1st Dept 2008] ....................................................................... 60, 61 People v Dones, 279 AD2d 366 [1st Dept 2001] ............................................................................22 People v Feliciano, 301 AD2d 480 [1st Dept 2003] ............................................................................43 People v Fero, 156 AD2d 582 [2d Dept 1989] .............................................................................16 People v Gallagher, 69 NY2d 525 [1987] .............................................................................................15 People v Gee, 99 NY2d 158 [ 2002] ............................................................................................29 People v Getch, 50 NY2d 456 [1980] .............................................................................................19 v People v Gissendanner, 48 NY2d 543 [1979] ...................................................................................... 52, 53 People v Goggins, 34 NY2d 163 [1974] ..................................................................................... passim People v Gomez-Kadawid, 66 AD3d 1124 [3d Dept 2009] .............................................................................61 People v Gonzalez, 1 NY3d 464 [2004 ] ..............................................................................................22 People v Griffin, 300 AD2d 743 [3d Dept 2002] .............................................................................60 People v Hagen, 247 AD2d 405 [2d Dept 1998] .............................................................................60 People v Handy, 83 AD3d 1454 [4th Dept 2011] ................................................................. 2, 27, 70 People v Haupt, 71 NY2d 929 [1988] ................................................................................ 40, 58, 61 People v Hawthorne, 35 AD3d 499 [2d Dept 2006] ...............................................................................21 People v Hines, 97 NY2d 56 [2001] ...............................................................................................15 People v Hooks, 71 AD3d 1184 [3d Dept 2010] .............................................................................34 People v Jackson, 78 NY2d 638 [1991] ................................................................................ 26, 35, 49 People v James, 289 AD2d 3 [1st Dept 2001] ................................................................................68 vi People v James, 93 NY2d 620 [1995] ...................................................................................... 50, 71 People v Jardin, 88 NY2d 956 [1996] ................................................................................ 41, 42, 61 People v Jenkins, 41 NY2d 307 [1977] .............................................................................................35 People v Jones, 70 NY2d 547 [1987] ............................................................................... 35, 47, 62 People v Jones, 47 AD3d 446 [1st Dept 2008] ..............................................................................67 People v Joseph, 86 NY2d 565 [1995] .......................................................................... 57, 58, 62, 63 People v Kelly, 62 NY2d 516 [1984] ..................................................................................... passim People v Kozlowski, 11 NY3d 223 [2008] ...................................................................................... 52, 53 People v LaMountain, 249 AD2d 584 [3d Dept 1998] .............................................................................68 People v Mahoney, 6 AD3d 1104 [4th Dept 2004] ..............................................................................20 People v Martinez, 71 NY2d 937 [1988] .................................................................... 27, 49, 63, 64, 67 People v Mays, 295 AD2d 149 [1st Dept 2002] ............................................................................43 People v Meacham, 84 AD3d 1713 [4th Dept 2011] ............................................................................20 vii People v Mitchell, 216 AD2d 156 [1st Dept 1995] ............................................................................60 People v Owens, 282 AD2d 296 [1st Dept 2001] ............................................................................68 People v Pantino, 106 AD2d 412 [2d Dept 1984] ............................................................................65 People v Payne, 3 NY3d 266 [2004 ] ..............................................................................................21 People v Perez, 65 NY2d 154 [1985] ............................................................................................. 47 People v Perez, 255 AD2d 403 [2d Dept 1998] .............................................................................59 People v Perino, __NY3d__, 2012 WL 1032726 [decided March 29, 2012] .............................. 32, 33 People v Ramos, __NY3d __, 2012 WL 1499170 [decided May 1, 2012] .....................................22 People v Ramos, 147 AD2d 718 [2d Dept 1989] .............................................................................43 People v Ranghelle, 69 NY2d 56 [1986] ........................................................................................ 44, 72 People v Reedy, 70 NY2d 826 [1987] .............................................................................................42 People v Rosario, 9 NY2d 286 [1961] ....................................................................................... passim People v Saddy, 84 AD2d 175 [2d Dept 1981] ........................................................................ 48, 65 viii People v Santorelli, 95 NY2d 412 [2000] .............................................................................................72 People v Seaman, 238 AD2d 449 [2d Dept 1997] .............................................................................60 People v Smith, 79 NY2d 309 [1992] .............................................................................................24 People v Springer, 122 AD2d 87 [2d Dept 1986], ................................................................. 48, 65, 66 People v Steinberg, 79 NY2d 673 [1992] ................................................................................ 15, 19, 24 People v Suarez, 6 NY3d 202 [2005 ] ..............................................................................................21 People v Tigner, 51 AD3d 1045 [2d Dept 2008] .............................................................................22 People v Torres, 190 AD2d 52 [3d Dept 1993] ........................................................................ 64, 65 People v Wallace, 76 NY2d 953 [1990] ...................................................................................... 50, 63 People v Walsh, 262 NY 140 [1933] .................................................................................................. 30 People v White, 40 NY2d 797 [1976] .............................................................................................53 People v Williams, 94 AD3d 1452 [4th Dept 2012] ............................................................................22 People v Wong, 81 NY2d 600 [1993] ...................................................................................... 20, 21 ix People v Wright, 86 NY2d 591 [1995] .............................................................................................71 Tomasello v 64 Franklin Inc, 45 AD3d 1287 [4th Dept 2007] ............................................................................68 Other State Cases Commonwealth v Henderson, 582 NE2d 496, 411 Mass 309 [1991] ...................................................................45 Cost v State, 10 A3d 184, 417 Md 360 [2010] ................................................................... 66, 67 Ex Parte Gingo, 605 So2d 1237 [Ala S Ct 1992] ...........................................................................45 Lolly v State, 611 A2d 956 [Del S Ct 1992] ...............................................................................67 State v Delisle, 648 A2d 632, 162 Vt 293 [1994]..........................................................................45 State v Ferguson, 2 SW3d 912 [Tenn S Ct 1999] .............................................................................45 State v Morales, 657 A2d 585, 232 Conn 707 [1995] .....................................................................45 State v Okumura, 894 P2d 80, 78 Hawai 383 [1995] ........................................................................45 State v Osakalumi, 461 SE2d 504, 194 WVa 758 [1995] ...................................................................45 State v Smagula, 578 A2d 1215, 133 NH 600 [1990] ......................................................................45 x State v Tiedman, 162 P3d 1106 [Utah S Ct 2007] ...........................................................................45 State v Youngblood, 790 P2d 759, 164 Ariz 61 [1980] .........................................................................39 Thorne v Dep't Public Safety, 774 P2d 1326 [Alaska S Ct 1989] .......................................................................46 State Statutes CPL 240.20 ........................................................................................................ 26, 46 CPL 240.45 .............................................................................................................. 25 CPL 240.75 .............................................................................................................. 66 CPL 440.30 .............................................................................................................. 49 CPLR 3101 ...............................................................................................................29 Penal Law § 15.05 .............................................................................................. 15, 20 Penal Law § 120.05 .................................................................................................. 13 Other Authorities, Law Review Articles and Reports Norman C Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence and the Limits of Bad Faith, 86 Wash U L Rev 241, fn 6 [ ] .................................................................... 28, 38, 45 Lembke, The Role of Police Culpability in Leon and Youngblood, 76 Va L Rev 1213 [1990] ........................................................................................ 38 Peter Neufeld, Legal and Ethical Implications of Post-Conviction DNA Exonerations, 35 New Eng Law Rev 639, 646 [2001] ............................................ 33 xi New York State Bar Association Task Force on Wrongful Convictions, Final Report April 2009 ..................................................................................... 27, 28 Newspaper Articles A Mishandling of Justice, St Petersburg Times, Aug 12, 2000, at 16A ............................................................................................... 38 Whitaker, DNA Frees Inmate Years After Justices Rejected Plea, NYT, Aug 11, 2000, at A 12 .............................................................................................. 37 http://www.tampabay.com/specials/2012/audio/trayvon_martin_911. ................... 60 1 QUESTIONS PRESENTED 1. Did the prosecution present legally sufficient evidence on the element of intent to cause physical injury where the evidence, viewed in the light most favorable to the prosecution, showed that the injury to Deputy Schliff’s hand was the result of Mr. Handy’s foot colliding with Schliff’s hand, as the deputy reached in from behind Mr. Handy in an effort to grab hold of Handy’s foot. Appellative Division, Fourth Department: There was legally sufficient evidence of intent to injure. 2. Where the prosecution failed to preserve video or digital recordings made by the Monroe County Sheriff’s Department from surveillance cameras located in areas of the jail where the incident between Mr. Handy and deputies began and through which the resulting skirmish continued, was it error to not provide the jury with the adverse inference charge as defense counsel had requested, given one deputy’s concession that he had viewed at least one recording that captured part of the incident? Appellative Division, Fourth Department: An adverse inference charge was not warranted because Mr. Handy failed to establish the unavailable recording was “discoverable” evidence or contained exculpatory material. 2 PRELIMINARY STATEMENT On March 21, 2007, Mr. Handy was charged by way of Monroe County Indictment with three counts of assault in the second degree (Penal Law § 120.05[7]). Counts one and two alleged that on or about November 8, 2006, while confined to the Monroe County Jail, Mr. Handy acted with intent to cause physical injury to another person, and caused such injury to Brandon Saeva (count one) and Timothy Schliff (count two). Count three alleged that on January 8, 2007, while confined to the Monroe County Jail, Mr. Handy acted with intent to cause physical injury to another person, and caused such injury to Scott Willis. A trial was held starting on September 17, 2007 in Monroe County Court. Mr. Handy was found not guilty of the assault charges in counts one and three. He was found guilty of count two, the November 8th assault charge involving injury to Deputy Schliff. On October 18, 2007, Mr. Handy was sentenced to a five year determinate sentence of incarceration, to be followed by three years of post-release supervision. On April 1, 2011, the Appellate Division, Fourth Department unanimously affirmed Mr. Handy’s conviction (People v Handy 83 AD3d 1454 [4th Dept 2011]). That court held, inter alia, that (1) an adverse inference jury charge based upon the People’s failure to preserve an alleged videotape was not warranted because Mr. Handy had failed to establish the alleged videotape was discoverable evidence which the People were required to preserve, noting “[t]here is no support 3 in the record for defendant’s assertion that the alleged videotape was exculpatory and thus his contention that the alleged videotape was Brady material is merely speculative,” and (2) the evidence was legally sufficient to establish that Mr. Handy intended to cause physical injury to another person. On February 29, 2012, the Honorable Jonathan Lippman granted Mr. Handy leave to appeal to this Court. 4 STATEMENT OF FACTS A. Introduction Dayshawn Handy was in the Monroe County Jail on November 8, 2006, when he became involved in a dispute with Deputy Saeva in cellblock “C”, which spilled over into cellblock “B” and beyond, over some boxer shorts and slippers. The deputy was trying to “collect” those items from Mr. Handy (R 291). After turning over one of the contraband items, Mr. Handy was insistent upon keeping the other. According to Deputy Saeva’s testimony, Mr. Handy attempted to punch him, and the deputy then “started to defend” himself with his hands (R 293-294). According to Mr. Handy’s testimony, Deputy Saeva swung at him and missed, and then grabbed him in a football tackle (R 401). Mr. Handy, who was thrashing around and refusing to walk, was carted off to the segregated housing unit (SHU) by other deputies who responded to the situation in cell block “C”. In the process, Deputy Schliff reached his hand into the mix from behind Mr. Handy in an effort r to take hold of Mr. Handy’s foot. A collision between Mr. Handy’s foot and Deputy Schliff’s thumb resulted in a thumb injury. Mr. Handy was convicted of intentionally causing physical injury to Deputy Schliff while confined in a correctional facility, as charged in count two of the indictment. 1 1 A second incident, reflected in count three of the indictment, involved allegations of a scuffle and injury to a different jail deputy (Willis), occurring on January 8, 2007. Mr. Handy was 5 B. The Prosecution Witnesses’ Version of Events Deputy Saeva testified that several deputies came to assist him with a struggling Mr. Handy. One of the first responders to enter cell block “C” was Deputy Schliff. Deputy Saeva had to unlock the door to let him and the other deputies inside, and he described their entry as a waive of blue shirts. He recalled Mr. Handy kicking and Deputy Schliff trying to get control of his legs (R 310 - 311). Deputy Schliff arrived at “C” block by going through “B” block. The gate between the two was locked, and he and other had to wait for the gate to be unlocked. A couple of feet from the gate that had just been unlocked, Mr. Handy was thrashing about. Schliff joined in, positioned behind the other deputies and Mr. Handy, who were all facing the door. Mr. Handy’s foot came up as Deputy Schliff reached for it, in what the deputy described as a backwards kick, “like a horse kicking backwards, you know, straight back.” Deputy Schliff had not announced that he was going to reach out and grab Mr. Handy’s foot. Mr. Handy’s back was to Deputy Schliff. During this whole time, the deputies were “tussling, pulling [Mr. Handy] toward the door. Mr. Handy never made any verbal threats. Mr. Handy was carried through cell block “B” and to the corridor. (R 337 – 343). found not guilty of that charge, and not guilty of count one involving an alleged injury to another deputy (Saeva) on November 8th. 6 All prosecution witness denied that Mr. Handy was naked (R 300, 339). All agreed Mr. Handy had made no verbal threats to hurt anyone (R 306, 341). C. The Defense’s Version of Events Mr. Handy testified to a very different version of events. The day before the November fracas that started with Deputy Saeva, Mr. Handy had sustained an injury to his wrist, which he described as swollen and “fractured.” The nurse, however, had told him there was nothing wrong with it. The following day the nurse visited him in his jail cell, but he rejected her assistance and “cursed her out” in the process. Mr. Handy was in his cell, with a towel wrapped around his waist as he had just returned from the shower, when Deputy Saeva demanded that he give over his boxer shorts that were on the floor of his cell, and his slippers. (R 396 - 400). Mr. Handy testified that he surrendered his slippers as requested, but refused to hand over his boxer shorts and cursed at the deputy in the process. Deputy Saeva took a swing at him, and “football tackled” him onto the bed (R 401). Mr. Handy described his injured, swollen wrist as being pinned underneath his body, with the weight of Deputy Saeva on top of him, as Deputy McCarthy hit him (R 403). Mr. Handy described Deputy McCarthy as playing, acting and performing for the camera (R 402). The two deputies then placed handcuffs on Mr. Handy, causing much pain to his injured wrist. His cell was near the door between cellblock “C” and cellblock 7 “B”, and he was brought to the door that divided the two. Other deputies were pulling his feet upward, trying to put them in shackles. He said he could not do anything: “[t]hey had me in cuffs and they was pulling me.” (R 403 - 406). Mr. Handy described himself as “butt naked” during the scuffle, as the towel he had wrapped around him had fallen off. Mr. Handy testified that he did not try to hurt any of the deputies and did not kick at any of them. He did not remember seeing Deputy Schliff. (R 406 - 407). While the prosecution’s proof reflected that this incident occurred around 9:30 p.m. on the eighth of November, Mr. Handy said that it happened on the ninth (R 395, 420). However, all witnesses were clearly describing the same incident. D. The Surveillance Recordings Counsel for Mr. Handy tried repeatedly to discover whether surveillance video recordings had been made, and if they had, to secure their preservation (R 56 – 57; 444 – 445 [“ We made our request for preservation as soon as we could”]). It was clearly established that an assistant district attorney had indeed asked the Sheriff’s Department to preserve recordings of either incident (R 89). Defense counsel had also requested any electronic surveillance recordings in his formal motion for discovery (R 17), and had requested all exculpatory material pursuant to Brady v Maryland (373 US 83 [1963]) (R 19 - 24). The prosecution responded that all discoverable material in its possession had been turned over 8 pursuant to Article 240 of the CPL; that if there were videotapes in the custody of the arresting or investigating agency a meeting with counsel to view such evidence could occur; that all other requests were refused; and that the prosecution was unaware of any Brady material (R 35, 40, 89). On the date of motion argument, June 28, 2007, Assistant District Attorney Duckles advised the court that while no pretrial hearings were required in the case, there was an unresolved issue involving videotape recordings. Defense counsel then explained the issue. “[T]hat would have to do with a videotape that we understand exists with regard to at least one of the incidents, if not both. We have yet to be provided with that videotape, and it is our understanding that [defense counsel previously representing Mr. Handy] has made requests for the preservation of that since the time of the preliminary hearing in this case. It is my understanding that there is some difficulty locating the videotape at this point.” (R 57). Counsel for Mr. Handy continued in his efforts to ascertain whether video recordings had been made right up to the time of trial (R 88 – 90). During the morning court session on the day the trial began, a different prosecutor, Assistant District Attorney O’Keefe, told the court what she had been able to piece together regarding the surveillance recordings. She had learned that Sergeant Kloner (of the Sheriff’s Department) had been contacted by ADA Duckles and asked “to preserve any video of either incident” (R 89). “I’ve learned at this time there’s no video,” 9 and Sergeant Kloner was “unable to confirm or deny that there was ever a video of either incident.” The prosecutor added “I have nothing to indicate that there was any Brady.” She summarized, “[a]gain, it is difficult because I wasn’t the ADA throughout the life of this case, but in my backtracking, that is what I have discovered, that Mr. Duckles did ask, in fact, for it to be preserved and now there’s no video.” (R 89). The case was adjourned to the afternoon, for jury selection. Once the proceedings reconvened, the court told counsel that it would continue to reserve on the defendant’s motion for preclusion based upon the failure to preserve the videotape, in part, because there had been no concession by the People that the recording actually existed and was not turned over (R 100). After jury selection was completed, the prosecutor told the court she had learned more information about the videotape recording of the January incident (count three). She explained: “I have tried extensively in the last couple of days to get an answer determinatively of whether there was a video of that second incident [January] at any point. As I told the Court yesterday, I was able to determine yesterday that it was not requested within the first thirty days.” After conceding that a videotape of the January incident had existed and that defense counsel had requested that it be preserved at the time of arraignment but that a member of either her office staff or the jail staff had failed to do so, she asked for the least drastic curative action, an adverse inference instruction, which was ultimately 10 given as to count three only – a count on which a not guilty verdict was returned (R 265). The prosecutor’s statement at this time did not address whether a recording of the first incident (November 8th counts one and two) had been made. At trial, however, Deputy Saeva’s testimony established that at least one recording of the November 8th incident had been made by a camera located in cellblock “C” and that he had reviewed it. Deputy Saeva’s testimony also included description of the locations of several surveillance cameras – those positioned in the area of the initial event and others positioned along the route taken by Mr. Handy and deputies as they left cell block “C”, passing into and through cellblock “B” and onto the corridor and elevator. The Deputy characterized the videotape he watched as showing a “very small part” of “the incident,” but he could not remember what he had seen due to the passage of time. He could not remember whether he had viewed any other camera recordings (R 314 - 315). With testimony establishing that at least one recording that captured footage relating to the November 8th incident had been made, defense counsel asked the court to provide an adverse inference instruction concerning the destruction/loss of the recordings as to all counts of the indictment. He pointed out that the request for preservation had been made by the defense as soon as possible, and that it was only during trial that it was learned that there was a video relating to counts one 11 and two. Counsel was specific in asking that the adverse inference or presumption charge be applied to all counts. (R 445). He then went on to request as to count three, that the language of the charge be in the form of a presumption that the video would have benefitted the defense (R 445). A general adverse inference charge was given only as to count three (R 501). E. Motion for Trial Order of Dismissal At the end of the People’s case, as to count two of the indictment, defense counsel moved for a trial order of dismissal based upon the absence of proof of intent to cause physical injury (R 383 - 387). Counsel noted that the testimony described a situation where deputies were pulling a thrashing Mr. Handy toward the door, and that Deputy Schliff was positioned behind Handy. With Mr. Handy facing away from Deputy Schliff, Schliff reached his hand down to grab Mr. Handy’s foot, when the foot came up and struck his outreached hand (R 385). Those facts, counsel argued, were insufficient to establish an intent to strike Deputy Schliff, let alone an intent to injure him (R 385). The court reserved decision and Mr. Handy testified. Defense counsel renewed his motion for a trial order of dismissal, again noting the lack of intent. The court denied the motion (R 441). 12 F. The Verdict and Sentence The jury returned a verdict of guilty only as to count two of the indictment (November 8th incident involving injury to Deputy Schliff). At sentencing on October 18, 2007, counsel pointed out the disparity between the misdemeanor plea offer the prosecution had made in the middle of trial and the prosecution’s current request for five year’s of incarceration. Counsel noted that the only change in circumstance between the time of the plea offer and now, was that Mr. Handy had been acquitted of two out of the three counts. The court imposed a five year term of incarceration, to be followed by three years of post-release supervision. (R 534 – 547.) 13 POINT ONE: THE PEOPLE FAILED TO PRESENT LEGALLY SUFFICIENT EVIDENCE OF INTENT TO CAUSE PHYSICAL INJURY. A. Introduction “A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007] [citations and internal quotation marks omitted]; People v Contes, 60 NY2d 620, 621 [1983], quoting Jackson v Virginia, 443 US 307, 319 [1979]). To sustain a conviction for assault in the second degree under subdivision 7 of Penal Law § 120.05, the People must prove intent to cause physical injury. Here, the test is not satisfied because there is no valid line of reasoning or permissible inferences that could lead a rational person to conclude beyond a reasonable doubt that Mr. Handy acted with intent to injure Deputy Schliff or anyone else. Viewed in the “light most favorable to the People,” the evidence in this case is straight forward and simple. Several deputies converged upon Mr. Handy to “escort” him to the Special Housing Unit (SHU) of the Monroe County Jail on November 8, 2006. Mr. Handy was disinclined to go. After Mr. Handy was handcuffed by Deputy Saeva, he refused to walk and was yelling and kicking. Other deputies intervened, and in the process, Deputy Schliff’s thumb was injured 14 when he reached into the skirmish to grab ahold of Mr. Handy’s leg. As Schliff reached for the foot, it came straight back and up, colliding with Schliff’s hand. At that time, Deputy Schliff was positioned behind a tangle of two deputies and Mr. Handy, and Handy’s back was to Deputy Schliff. Mr. Handy had never verbally threatened to hurt anyone in any way. (R 339 - 341). Even in the light most favorable to the prosecution, under these circumstances, there is no valid line of reasoning or permissible inference that would allow a rational person to conclude this evidence established, beyond a reasonable doubt, that Mr. Handy intended to cause physical injury. B. Mr. Handy’s Argument is Preserved for Review. At the end of the prosecution case, Mr. Handy’s counsel moved for a trial order of dismissal, arguing, inter alia, that the evidence at to count two on the element of intent was insufficient. Specifically, counsel reviewed the prosecution proof and said the following. “Given those facts in the light most favorable to the People, that’s not sufficient proof that Mr. Handy intended to even strike Deputy Schliff let alone cause that injury. There is testimony about thrashing and kicking about, but there is no testimony that would indicate that when that foot came up as he was being pulled that Mr. Handy intended to cause any injury to Deputy Schliff”. ( R 385). 15 Defense counsel renewed his trial order of dismissal motion after the defense rested, not only relying on the arguments made at the initial motion, but again specifically noting that no intent was shown as to count two (R 441). The court denied the motion (R 441). Thus, this insufficiency of the evidence issue has been preserved pursuant to the requirements of People v Hines (97 NY2d 56 [2001]). C. The Prosecution Failed To Present Legally Sufficient Evidence From Which To Infer Intent To Cause Injury. A person acts intentionally when there is a “conscious objective” to cause the result proscribed by statute (Penal Law § 15.05 [1]; People v Gallagher, 69 NY2d 525, 529 [1987]). Where intent is the governing mens rea, the focus must be on the “defendant's conscious aim or purpose - the objective - in doing particular acts.” (People v Steinberg, 79 NY2d 673, 680-81 [1992]). While intent is a subjective state of mind, it may be proved by circumstantial evidence. The objective evidence of the surrounding circumstances in this case fail to supply the necessary valid line of reasoning from which to conclude beyond a reasonable doubt that Mr. Handy intended to cause injury. The jury in this case was charged as follows: “Intent means conscious objective or purpose. Thus, a person acts with intent to cause physical injure to another person when that person’s conscious objective or purpose is to cause physical injury to another. . . . . To make that determination [as to intent] in this case, you must decide if the required intent can be inferred beyond a reasonable doubt from the proven facts. In doing so you may consider the person’s conduct and all of the circumstances surrounding that 16 conduct including, but not limited to, the following: What if anything, did the person do or say; what result, if any, followed the person’s conduct and was that result a natural, necessary and probable consequence of that conduct? (R 506). At most, Deputy Schliff’s injury was the result of a reckless or negligent act that occurred as Mr. Handy was resisting the deputies attempts to forcefully take him to a disciplinary housing unit. His actions of thrashing around may have indicated an intent to resist the deputies and an intent to prevent the deputies from grabbing him, but his actions do not indicate a specific intent to cause injury (see People v Fero, 156 AD2d 582 [2d Dept 1989] [evidence failed to show that defendant intentionally caused injury when he fled scene of melee in a van]). Deputy Schliff’s testimony compels that conclusion. Q. When you opened the door, they were just about a foot or two away from the door, right? A. Yes, sir. Q. And Mr. Handy was thrashing about? A. Yes, sir. Q. Is that - - and you entered and went behind Deputy Saeva, McCarthy and Handy to get the legs? A. Yes sir. They walked past me. Q. They walked past you and then while you were behind them that’s when you tried to reach for the legs? A. Yes, sir. 17 [. . . . ] Q. And did you say anything to the deputies? A. No, sir. Q. You didn’t say, I’ll grab his legs, anything like that? A. I didn’t announce that, no. Q. And so you are standing behind there trying to work him towards the door and you’re behind Deputy Saeva, McCarthy, with Mr. Handy, they are all facing the door, right? A. Yes, sir. Q. And you at that point bend down and try to grab a leg, right? A. Correct. Q. And that’s when the foot came up, right? A. He kicked backwards. Q. And the foot came up vertically? A. I would describe it like a horse kicking backwards, you know, straight back. Q. And this whole time where they are tussling, pulling him toward the door? A. Uhm-hum. Yes, sir. Q. So the foot comes up; is that right? A. That’s correct. Q. That’s when that foot hit? A. Yes, sir. [. . . .] 18 Q. And then you immediately, after being struck by the foot, grabbed the leg again, right? A. Yes, sir. Q. And there was no - - and you didn’t get hit by the foot when you grabbed the leg again, right? A. No sir. [ . . . ] Q. And while you were doing that you couldn’t see Mr. Handy’s face, right? A. No, sir. Q. Because his back was to you, right? A. Correct. Q. And he was facing forward? A. Correct. Q. And at no time did Mr. Handy threaten you in any way? A. He didn’t. Q. Verbally? A. Verbally, no sir. Q. And when you grabbed that leg, you picked him up off the floor? A. Correct. (R 339 - 342). This testimony makes clear that the collision between Deputy Schliff’s hand and Mr. Handy’s foot came at a time when Mr. Handy had his back to Deputy 19 Schliff and was facing away from him. Schliff had not said anything that would indicate he was about to grab Mr. Handy’s leg; he just reached for it from behind as Mr. Handy was thrashing about. Mr. Handy had made no verbal threat to injure anyone, or said anything from which an intent to cause injury could be inferred (R 346). There was simply no proof from which to reasonably infer that Mr. Handy’s conscious objective was to injure Deputy Schliff or anyone else. Clearly, the fact that the injury occurred alone cannot substitute for other proof from which intent can be inferred. While a jury is permitted to consider whether a specific result was the natural, necessary and probable consequence of the defendant’s action in determining intent (see Steinberg, 79 NY2d at 685), as Judge Lippman pointed out in his dissenting opinion in People v Bueno (18 NY3d 160 [2011]), while “[a] jury is entitled to infer that a defendant intended the natural and probable consequences of his acts [majority op. at 169),” there is a critical limitation to doing so as “it is not true that specific intent can be inferred solely from an act’s result.” (Bueno,18 NY3d at 171 [Lippman, J., dissenting]; see also People v Getch, 50 NY2d 456 [1980] [the jury instruction was proper because “it cannot be said that the jury was left with the impression that they should or could infer intent solely from the doing of a particular act”]). “Steinberg does not stand for the proposition that any time a particular result actually occurred, the jury is entitled to infer intent to cause that result. Rather, the jury is charged with looking 20 as the natural and probable consequences and the surrounding circumstances. Otherwise, the result in itself would always be sufficient to support a finding of intent.” (Bueno,18 NY3d at 171 [Lippman, J., dissenting [emphasis in original]). By no means was Deputy Schliff’s injury either a “natural” or “probable” consequence of Mr. Handy’s flailing foot. At best, an injury was a mere a possibility if someone got near it. Thrashing about, Mr. Handy’s foot was in motion, and whether characterized as a backwards kick (Deputy Schliff likened it to that of a horse kicking) or something else, that movement alone does not carry with it the “natural and probable consequence” of an injury (compare People v Mahoney, 6 AD3d 1104 [4th Dept 2004] [intent to cause serious physical injury could be inferred as it was a natural and probable consequence of repeatedly kicking victim in head as he lay defenseless on ground]; People v Meacham, 84 AD3d 1713, 1714 [4th Dept 2011] [repeatedly striking victim as he lay defenseless on ground]). Mr. Handy’s conduct may have created a risk of injury to those surrounding him. But along the continuum of culpable mental states, that would make his actions reckless ( Penal Law § 15.05 [3]) or criminally negligent (Penal Law § 15.05 [4]), at best (see e.g. People v Wong, 81 NY2d 600, 608 [1993] [evidence insufficient to sustain a finding of any criminal liability because at the very least, the People would have to show awareness of the child’s injured state and a risk of 21 death without prompt medical attention, and they failed]). Here, the only reasonable inference to be drawn by the jury is that Mr. Handy’s act was reckless or criminally negligent (see People v Bailey, 13 NY3d 67, 71 [2009] [the only reasonable inference to be drawn by the jury is that defendant's intent was larceny, which was completely unrelated to the crime charged]). Where a defendant is convicted of a crime under a specific mens rea theory, but the evidence at trial, viewed in the light most favorable to the prosecution, does not support that theory and instead establishes that the defendant acted with a different mens rea, the conviction may not stand (see People v Suarez, 6 NY3d 202 [2005] [evidence established a manifest intent to kill, negating jury finding of depravity]; People v Hawthorne, 35 AD3d 499 [2d Dept 2006] [same]; People v Payne, 3 NY3d 266 [2004]; People v Abar, 42 AD3d 676 [3d Dept 2007] [appellate court finding that defendant acted intentionally rather than recklessly required reversal of conviction and dismissal of indictment]). This is simply not a case where an inference of wrongful intent logically flows from the proven facts, or where there exists a valid line of reasoning that could lead a rational trier of fact to conclude that Mr. Handy intended to cause physical injury (see Wong, 81 NY2d at 608). This is not a case where certain factors such as the use of a weapon, a statement by defendant, the nature of the violent act, or type of injury sustained, may support a finding of intent to cause 22 injury (see e.g. People v Ramos, __NY3d __, 2012 WL 1499170 [decided May 1, 2012] [jury could draw inference that defendant intended to commit serious physical injury based upon evidence that defendant had been embarrassed when he was mocked; the timing and retrieval of gun and his use of it to shoot at group of people; and his statement after the shooting that he did not believe his small caliber gun would kill anyone]). Mr. Handy’s act of kicking his foot up behind him when he could not have seen Deputy Schliff reaching for his foot and the injury of a partially torn ligament in the thumb area are not of the kind and nature that would support an inference of intent (compare People v Gonzalez, 1 NY3d 464 [2004] [intent to kill where defendant aimed gun directly at victim shooting him 10 times at close range, even in the head after he had fallen to ground]; People v Williams, 94 AD3d 1452 [4th Dept 2012] [proof of intent sufficient where defendant repeatedly punched 66 year-old man in face even after knocking him to the ground, and struck with such force as to case a retrobulbar hemorrhage, fracture of the orbit and complete displacement of lens]; People v Tigner, 51 AD3d 1045 [2d Dept 2008] [intent to kill could be inferred from evidence that defendant plunged knife three to four inched deep into victim’s chest]; People v Dones, 279 AD2d 366, 366 [1st Dept 2001] [intent to kill could be inferred from evidence that defendant plunged knife deep into the victim's chest near vital organs]). 23 Because the issue of the legal sufficiency of the evidence presented on the element of intent to cause physical injury was carefully preserved by defense counsel’s specific trial order of dismissal motion which was renewed at the close of the defense case, and because the prosecution’s proof of intent to cause physical injury was insufficient as a matter of law, Mr. Handy respectfully urges this Court to reverse his conviction and dismiss the indictment. 24 POINT TWO: THE TRIAL COURT’S FAILURE TO IMPOSE ANY SANCTION FOR THE PROSECUTION’S FAILURE TO PRESERVE MATERIAL AND CRITICAL EVIDENCE REQUIRES REVERSAL. A. Introduction The outcome of this case turned primarily on whether Mr. Handy possessed the required “intent” to cause physical injury. Intent, of course, be “may be inferred from conduct as well as the surrounding circumstances” (People v Steinberg, 79 NY2d 673, 682 [1992]; see also People v Smith, 79 NY2d 309, 315 [1992]), and jurors in this case were so charged (R 506). A video recording of the alleged assault, or the circumstances surrounding the conduct that resulted in the injury to Deputy Schliff’s thumb, would have been critical to the outcome of the case. Despite repeated requests by the defense, at the start of trial, the People had neither turned over any video recordings relating to the November 8th alleged assault, nor acknowledged that any such recordings had ever been made 2 . The prosecutor’s posture on the issue was simply packaged: (1) there was no video recording currently available; (2) she had been unable to determine whether a recording had even been made; (3) and she “ha[d] nothing to indicate there was any Brady.” (R 89.) Apparently, however, the prosecutor had never bothered to 2 After jury selection the prosecutor did acknowledge a video recording of the January alleged assault had been made but was no longer available. 25 ask primary prosecution witness Deputy Saeva whether a recording had been made. His trial testimony resolved the question of whether any recordings of the November incident had been made by the Sheriff’s Department: there had been recordings made, and Deputy Saeva had even watched one although he could not recall whether he had watched more than one. As to all counts of the indictment, defense counsel requested that an adverse inference jury charge be given (R 444 - 445), but the trial court only provided an adverse inference charge as to the lost recording of the January incident (count three) of which Mr. Handy was acquitted. “A right sense of justice” was the motivation behind this Court’s decision in People v Rosario (9 NY2d 286 [1961]) – a decision that significantly advanced fairness in criminal trials by assuring defendants access to evidence that could be useful to the defense, and generated ten years later, a legislative response codifying what became known as the Rosario discovery rule criminal cases (CPL 240.45). In the opening paragraph of that decision, this Court observed that while Mr. Rosario was no doubt guilty, “he does raise a question which involves an important problem in the administration of the criminal law and merits our attention and consideration” (id. at 288). On that landscape, Mr. Rosario’s contention was examined and this Court agreed that the trial court erred in refusing to turn over statements of prosecution witnesses for use in cross-examination, notwithstanding the absence of any statutory or constitutional requirement to do so. As a matter of 26 fundamental fairness, this Court advanced “the cause of justice in criminal trials” by creating and imposing the “stringent discovery requirements that are at the heart of the Rosario decision” (People v Jackson, 78 NY2d 638 [1991]). The same “right sense of justice” that led this Court to require prosecutors to turn over what is now known as Rosario material for potential use in cross- examination compels a parallel discovery requirement of video recordings created by, or in possession of, the People or law enforcement agency, when that recording captures footage of the actual crime. Although surveillance recordings have become ubiquitous and often constitute critical evidence, a recording capturing all or part of the actual crime, in possession of law enforcement authorities or the People, is only discoverable under statute if the prosecution intends to introduce it at trial (CPL 240.20 [1] [g]), or if it contains evidence favorable to the defendant (CPL 240.20 [1] [h]; Brady v Maryland, 373 US 83 [1963]). This case demonstrates the critical, problematic gap that leads to fundamental unfairness and limits a defendant’s access to evidence that (1) may be helpful to the defense but falls short of the obviously favorable, or (2) is destroyed before it has been examined for favorable content. Whether a recording must be disclosed to the defense appears to currently depend upon its content. When the recording is lost or destroyed, it is all but impossible for a defendant to show it contained exculpatory, helpful or even material evidence. Indeed, the Fourth 27 Department found no sanction was required in this case because Mr. Handy had failed to establish that the videotape was “discoverable evidence”; and he had failed to show that the “videotape was exculpatory” and therefore his contention that it contained “Brady material is merely speculative” (People v Handy, 83 AD3d 1454, 1455 [4th Dept 2011]). However the prosecutor’s contention that she was not aware of any Brady material – a claim made when she had not seen the recording –while perhaps technically correct (as to awareness) is no less speculative of an absence of Brady material. Absent a disclosure requirement, there is no ancillary duty to preserve (see People v Martinez, 71 NY2d 937 [1988]), and a recording that captures some or all of the actual crime – evidence that is unmatched in terms of its objectivity and accuracy, whose value is critical not only in its potential usefulness to the defense but to the administration of justice on a whole – may intentionally or negligently be destroyed or lost by the party who has it, with no consequence and no remedy for the loss unless defendant is able to show that the recording he does not have and has never seen contains Brady material. That is an impossible feat in most cases. In 2009, the Task Force on Wrongful Convictions identified governmental practices as the second most frequent occurring root cause of wrongful convictions in New York. Included were “the failure of the prosecutor to deliver favorable 28 information to the defense pursuant to the New York State and Federal constitutional due process principles as required by Brady v Maryland (373 US 83 [1963]),” and “the failure of the police department to collect and transfer evidence in a manner that preserves its integrity, and to store, preserve, and safeguard physical evidence for testing or examination” (New York State Bar Association, Final Report April 2009, 19). “The many cases examined by the Task Force show that testing, storage and preservation of evidence is a systemic mess [. . .] The cases reveal that samples are lost or destroyed, that record keeping about the specimens does not accurately show where and how they are stored or if they have been destroyed. A sample of the cases reviewed by the Task Force show the dizzying efforts to find physical evidence that is reported lost, misfiled, or destroyed, with no record of the evidence.” (Id. at 39.) Clearly requiring disclosure and preservation of recordings like the one at issue in this case would provide incentive to secure, view and safeguard such recordings (see Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence and the Limits of Bad Faith, 86 Wash U L Rev 241, fn 6 [2008]). As it stands, however, law enforcement authorities who have created or are in possession of a video recording that captures footage of activity that become the basis of a criminal charge (and might contain Brady material or otherwise be useful to the defense), are under no duty to preserve and disclose the recording. And a prosecutor who has never even viewed the recording can disavow awareness 29 of any Brady information. When that evidence goes astray or is destroyed, whether by design or default, under the decision of the Fourth Department in this case, no sanction is warranted. And of course, whether that evidence contained exculpatory content, or was otherwise helpful to the defense, is never known. This issue parallels Rosario in both the “important problem in the administration of the criminal law” it presents, and the sound yet uncomplicated solution available. The value of such recording lies not only in its potential use, as in Rosario, to the defense in cross-examining witnesses, but to jurors in their fact- finding pursuit, as they would have before them objective evidence of what occurred rather than a witness’s description which may be infected by bias, mistake, perception or perjury (see People v Gee, 99 NY2d 158 [2002] [accepting objective nature of recording depicting actual crime]). The same rationale that led this Court to impose the discovery requirement in Rosario compels the preservation and disclosure of recordings of the crime in the possession of law enforcement, and does so based upon a need that is equal to, if not greater than, the need met by this Court’s ruling in Rosario. Such requirement is already in place in the civil trial discovery statute (see CPLR 3101 [i]). 30 B. Mr. Handy, Like Mr. Rosario, Has Identified an “Important Problem in the Administration of the Criminal Law” That Can Easily be Resolved by This Court. The Rosario rule was born of defense counsel’s request to be provided with the prior statements of prosecution witnesses for use in cross-examination. In accordance with the common law rule of that time, allowing defendants to inspect only prior statements that were inconsistent with the witness’s testimony (see People v Walsh, 262 NY140, 149-150 [1933]), prior statements were submitted to the trial judge instead of defense counsel, who examined them for inconsistencies and provided counsel only with those portions that contained variances. Counsel was not allowed to see the statements in their entirety in order to determine for himself what portions would be helpful on cross-examination (Rosario, 9 NY2d at 288). This Court recognized that the value in such statements lies in the potential of what may be included, and that benefit to the defense may not always be obvious. “Even statements seemingly in harmony with such testimony may contain matter which will prove helpful on cross-examination. They may reflect a witness’ bias, for instance, or otherwise supply the defendant with knowledge essential to the neutralization of the damaging testimony of the witness which might, perhaps, turn the scales in his favor. Shades of meaning, stress, additions or omissions may be found which will place the witness’ answers upon direct examination in an entirely different light. As the United States Supreme Court has so well observed, ‘Flat contradiction between the witness’ testimony and the versions of events given (previously) * * * 31 is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross- examining process of testing the credibility of a witness’ trial testimony.’ Jencks v United States, 353 US 657, 667 [1957].” (Rosario, 9 NY2d at 289 – 290.) Rather than continuing to limit disclosure to that which may be a source of inconsistency, this Court recognized value in broader terms: “[a]s long as the statement relates to the subject matter of the witness’ testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it”; and “the defense should be given the benefit of any information that can legitimately tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence” (Rosario, 9 NY2d at 289- 290). “Otherwise, there is always a danger that something will be withheld from defense counsel which may assist him in impeaching the prosecution witness.” (Id.) That same danger flourishes when a video recording of the actual crime is withheld from the defense, destroyed or lost. The issue now before the Court arose in very much the same way that the issue arose in Rosario – with defense counsel seeking access to critical and material evidence created by the Sheriff’s Department. The trial began without a definitive answer to the question defense counsel had been asking all along: had video recordings of either incident been made? Deputy Saeva’s trial testimony 32 soon established not only that at least one recording been made of the November 8th incident, captured by the camera in cell block “C”, but that he had watched it, and that it did show a small part of the incident, although he could not recall what he saw (R 314 - 315) or whether he viewed a recording from the cell block “B” camera (R 317). As in Rosario, Mr. Handy was denied access to evidence that may have proven very useful to the defense – but useful in a much broader sense. The value of a video recording that captures some part of an actual crime lies not only with its usefulness for cross-examination (the lone rationale underlying the Rosario rule), but also with its intrinsic value as an objective and reliable recording of what actually happened. The inimitable value of a contemporaneously created recording of an event at issue can be critical at trial, as it was for the prosecution in the perjury trial in People v Perino (__ NY3d __, 2012 WL 1032726, decided March 29, 2012), and for the defendant in the underlying case where Perino, a police officer, testified falsely. Perino was unaware that the suspect he was questioning was recording the interrogation on a MP3 player. At the suspect’s trial and a pretrial hearing, Perino testified that he had never questioned the suspect and that the suspect’s statement was the product of pure spontaneity. The suspect’s attorney then cross-examined Perino with the MP3 recording that proved otherwise, and Perino was later charged and convicted of 33 perjury. The point of mentioning this case is not for its holding, 3 but rather for the tangible illustration it provides of the unmatched ability a recording of the actual criminal transaction to facilitate not only cross-examination, but the truth-finding process. Had the suspect being interrogated in the Perino case not had access to the MP3 recording, the suspect’s attorney would not have been able to use it in cross-examining Perino and most likely the judge and the jury would have believed the perjured testimony. Had the MP3 recording been in the hands of police (instead of the suspect), it may have been destroyed, recorded over or lost by the police, accidently or otherwise, before the prosecutor even knew of its existence, let alone its content, as happened in the current case. Where no sanctions are imposed for the loss or destruction of recorded evidence in the absence of defendant demonstrating prejudice (which he lacks the means to do because of the destruction of the evidence), law enforcement agencies are relieved of using due diligence in preserving and safeguarding such evidence. 4 The result is a wide open window of opportunity – even where there has been a request for the preservation and production of the evidence – for the evidence to go astray or be destroyed before prosecutors are even aware of it. In such a system, 3 The defendant’s false sworn statements were found to have been “material” to the proceedings in which they were given. 4 See Peter Neufeld, Legal and Ethical Implications of Post-Conviction DNA Exonerations, 35 New Eng Law Rev 639, 646 [2001] [the absence of consequence where evidence is destroyed or lost – but not done so in bad faith – means there is no requirement that authorities use due diligence to safeguard evidence]. 34 there exists a rich incentive for law enforcement agencies to be careless and cavalier in safeguarding recordings, or even to destroy them. The enlarged use of digital and video recording means that such recordings will increasingly capture events that become the basis of criminal prosecution. Unless discovery requirements are imposed, whether those recordings end up in the hands of the defense, will be hit or miss. There will be no remedy to eliminate the prejudice suffered by a defendant when such recordings are lost or destroyed, for the defendant is unable to prove that the content of the recording was favorable to the defense. Discoverability of such recordings should not turn solely on whether the prosecutor intends to introduce it at trial, or whether the defendant can prove the impossible after it is gone. Imposing a duty to preserve recordings that captured part of the incident underlying the criminal charges is, like in Rosario, a matter of fundamental fairness when those recordings are created or possessed by law enforcement agencies, the prosecutor or its agent 5 . Otherwise, defendants will routinely be denied access to what may be the most accurate and reliable evidence in the case – and evidence that may be helpful in overthrowing the prosecution’s 5 The law in New York generated is clear; the People have no duty to acquire or prevent the destruction of evidence and possessed by private parties (e.g. People v Hooks, 71 AD3d 1184 [3d Dept 2010] [department store surveillance videotape]; People v Brock, 246 AD2d 406 [1st Dept 1998][bank surveillance tapes and photographs did not warrant dismissal of charges where there was no showing of bad faith or that tapes would have been beneficial to defendant]; People v Banks, 2 AD3d 266 [1st Dept 2003], lv denied 2 NY3d 737 [2004] [store surveillance tape never in possession of prosecution or police so no statutory or constitutional duty to acquire it or prevent its destruction as it was evidence generated and possessed by private parties]; People v Brooks, 57 AD3d 445 [1st Dept 2008]). 35 case (see Rosario, 9 NY2d at 290.) This Court should require such recordings to be disclosed and preserved, with sanctions applied when they are not, as was done in Rosario. C. As a Matter of New York Law, Fundamental Fairness and the Interests of Justice Require Discovery and Preservation of Recordings that Capture Activity that Becomes the Basis of a Criminal Prosecution When Created by or in Possession of Law Enforcement Authorities, and that Sanctions be Imposed to Eliminate the Prejudice Incurred When Such Recordings are Lost or Destroyed, Unless the People can Demonstrate that the Defense was Not Prejudiced by the Loss. When addressing the defendant’s right to access to evidence, the ultimate concern, as identified by this Court, is the defendant’s “right of confrontation, due process and fairness” (People v Jenkins, 41 NY2d 307, 310 [1977], citing Goggins, 34 NY2d at 168). “Most important, it is related to the risk of wrongfully convicting the innocent.” (Id.) In People v Jackson, this Court differentiated the rationale for Rosario disclosures from that of Brady disclosures, explaining “Rosario material is treated differently not because it is exculpatory, but because basic fairness dictates that a defendant be given the opportunity to evaluate pretrial statements of prosecution witnesses for their impeachment value.” (Jackson, 78 NY2d at 646 [explaining that Court was “not impelled by constitutional mandates to make the choices that we did. Rather, we were motivated by a desire to treat defendants fairly”]; see also People v Jones, 70 NY2d 547.) As opposed to the Federal law (discussed below), New York jurisprudence reveals a consistent aim to 36 eliminate any prejudice incurred by the loss of evidence (see People v Bryce, 88 NY2d 124 [1996] [once demand for favorable evidence is made, evidence will be deemed material if a reasonable probability that had it been disclosed the outcome would have been different – a rule that applies regardless of good or bad faith because purpose is not to punish but to insure a fair trial]; People v Kelly, 62 NY2d 516 [1984] [in fashioning remedy for failure to preserve evidence, overriding concern must be “to eliminate any prejudice to the defendant while protecting the interests of society”]). Such concern for fairness and mitigation of prejudice does not appear to be the motivation behind the current Federal rule on lost or destroyed evidence. While under the Federal Constitution the destruction of evidence the government knows to be exculpatory violates due process (see United States v Valenzuela-Bernal, 458 US 858, 867 [1982]), a different standard is applied to the destruction of evidence that may potentially be exculpatory. In Arizona v Youngblood (488 US 51 [1988]), a divided Supreme Court set forth a bright-line rule. Absent bad faith, the destruction of potentially favorable evidence – evidence of the type of which “no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant” – does not violate federal due process (Youngblood, 488 US at 57). Accordingly, as a matter of Federal Due Process, a 37 defendant is required to show either that the destroyed or lost evidence would exonerate him, or that the evidence was destroyed in bad faith. In 2004, the Supreme Court re-affirmed the Youngblood holding in Illinois v Fisher (540 US 544 [2004]), explaining that where the lost evidence is at best “potentially useful,” as opposed to “material exculpatory” evidence (see Brady v Maryland, 373 US 83), the bad faith standard applies (Fisher, 540 US at 547-48 [[“at most, respondent could hope that, had the evidence been preserved, a fifth test conducted on the substance would have exonerated him”]). The Youngblood “bad faith” rule has been sharply criticized, in part, because the “bad faith” standard incentivizes careless police practice regarding the safeguarding of evidence that may prove beneficial to the defense. “For those organizations that are poorly run or mismanaged, or don’t give a damn, the Youngblood decision was a license to let down their guard and be lazy. The effect generally was to lower the standards of evidence collection.” (Whitaker, DNA Frees Inmate Years After Justices Rejected Plea, NYT, Aug 11, 2000, at A 12, quoting Dr. Edward Blake, forensic scientist.) Most significantly, the Youngblood case serves as a cautionary tale of a wrongful conviction that could have been prevented had evidence not been inadvertently destroyed, and the rule it produced is now known to have been born on the back of a man who spent seventeen years in prison for a crime he did not 38 commit (see Norma C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence and the Limits of Bad Faith, 86 Wash U L Rev 241 [2008]; see also Lembke, The Role of Police Culpability in Leon and Youngblood, 76 Va L Rev 1213, 1237 [1990] [criticizing the bad faith standard as wholly inadequate to protect against unfair trials and suggesting that instead the “materiality” of the lost evidence be the focus]). The Youngblood decision “landed an innocent man in prison for years and gave the police the green light to mishandle key evidence without consequence.” (A Mishandling of Justice, St Petersburg Times, Aug 12, 2000, at 16A.) Larry Youngblood was convicted of sexually abusing a 10-year-old boy after abducting him from a church carnival in 1983. Although clothing had been collected from the victim containing semen stains, the state failed to refrigerate or freeze the clothing. By the time of the trial, the semen stains on the clothing had deteriorated and were no longer useful given the forensic testing available at the time. The trial court did provide jurors with a missing evidence instruction, allowing them to draw an adverse inference if they found the state had lost or destroyed evidence. Mr. Youngblood was convicted of child molestation, sexual assault and kidnapping after an hour and one half of deliberation. (Arizona v Youngblood, 488 US 51 [1988].) 39 The Arizona Court of Appeals reversed the conviction, finding that the unintentional destruction of evidence that could have eliminated Mr. Youngblood as the perpetrator was a denial of due process. That court found no “bad faith” in the destruction of the evidence, but relied upon Brady v Maryland (373 US 83) to find dismissal necessary to avoid an unfair trial (not to punish police). (State v Youngblood, 790 P2d 759 [Ariz Ct App 1980].) The majority of the United State Supreme Court found because the destroyed evidence was only potentially exculpatory, Brady was not implicated, and no due process violation occurred in the absence of bad faith. Justice Stevens concurred based upon his view that the ruling was broader than required to decide the case, as he believed that “there well may be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.” (Youngblood, 488 US at 60 [Stevens, J., concurring].) 6 Justice Stevens found it unlikely that Youngblood was prejudiced by the loss of evidence given defense counsel’s argument to the jury that the State had failed to preserve evidence that might have exonerated him, and the adverse inference 6 Justice Steven repeated that belief over a decade later in Illinois v Fisher (540 US 544, 549, Stevens, J., concurring [“I also declined to join the majority opinion because I was convinced then, and remain convinced today, that there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair”]). 40 instruction given to the jury. He was wrong, as Mr. Youngblood was exonerated following DNA testing in 2000. Writing for the dissent, Justice Blackmun rejected the “bad faith” test, and instead focused on the fairness to the accused and materiality of the evidence lost. The destruction of evidence that may have exonerated defendant, he wrote, was constitutionally “intolerable” as it inferred with the defendant’s ability to present a defense (id. at 66 – 69). This Court has not adopted the “bad faith” Youngblood standard, although the “inadvertent” nature of the loss of evidence has been said to be an appropriate factor to be considered when evidence is lost or destroyed (see e.g. Kelly, 62 NY2d at 520). In People v Haupt (71 NY2d 929 [1988]), decided a year before the Supreme Court decided Youngblood, sixteen years had passed between the time of the crime and the trial, during which the gun, cartridges and a policeman’s notebook had been destroyed through inadvertence. This Court held that defendant was not entitled to dismissal of the indictment (a new trial would not restore the lost evidence) because the destruction was inadvertent and the evidence lost not material to the critical issue at trial – whether defendant was legally sane at the time of the shooting. This Court did note, however, “[t]he fact that the People lost the evidence through inadvertence does not excuse the loss, but on this record the defendant was not entitled to the drastic remedy of dismissal of charge” (Haupt, 71 41 NY2d at 931 [internal quotation marks and citations omitted]). In People v Kelly (62 NY2d 516), where there was a failure to preserve discoverable evidence (a wallet and money taken from the accused), a sanction was required for the loss. In deciding on the appropriate sanction, this Court said that while “the degree of prosecutorial fault surely may be considered, [. . . ] the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society” (id. at 520). The lower courts’ (trial and appellate) remedy of dismissal was found by this Court to be an abuse discretion, as it was too drastic. In People v Allgood (70 NY2d 812 [1987]), another pre-Youngblood case, defendant was found to have forfeited whatever right he had to demand production of the rape kit, where he had known about the kit for eight months before trial but failed to demand its production, and never expressed any interest in obtaining independent testing until the middle of trial when it was disclosed that it had been destroyed. In People v Jardin (88 NY2d 956 [1996]), a case decided years after Arizona v Youngblood, and without citation to Youngblood, this Court found the failure of the People to gather and preserve a sufficient sample of semen did not violate either the United States or New York Constitutions. Identification was never at issue (the defense was consent), and the defense had not shown the potential evidence to have been material, “that is, that a sample possesses an exculpatory value evident before its destruction, loss or failure to preserve, and that defendant 42 was unable to obtain comparable evidence by reasonable means.” (Jardin, 88 NY2d at 958, citing California v Trombetta, 467 US 479 [1984]). New York did adopt, as a matter of state constitutional law, the reasoning of the United States Supreme Court in California v Trombetta (467 US 479, 485) in People v Alvarez (70 NY2d 375, 378 [1987]), holding that police are not required to take and preserve a second breath sample (DWI) for later testing by the defense. A failure to do so does not deprive defendants of “a meaningful opportunity to present a complete defense” and thus does not violate either the Federal or New York Constitutions (Alvarez, 70 NY2d at 378). The Alvarez decision rests on components totally unrelated to the preservation of a video recording: the scientific reliability underlying the presumed accuracy of the breath test already performed is no longer open to question; the foundational requirements imposed assure that the machine is in proper working order; the existence of alternative means to challenge the validity of the results; and the existence of statutory alternative means for obtaining secondary testing by defendant’s personal physician. Additionally, this Court noted, police are not required to affirmatively gather evidence for the accused (id. at 381; see People v Reedy, 70 NY2d 826 [1987]). Some Appellate Divisions have applied the Youngblood bad faith standard to lost or destroyed evidence (see e.g. People v Bellamy, 158 AD2d 525 [2d Dept 1990] [no bad faith in destruction of shell casing found at crime scene]; People v 43 Bridges, 184 AD2d 1042 [4th Dept 1992] [People’s failure to preserve rape kit containing evidence, the most of which can be said that it could have been tested and the results may have helped, did not warrant sanctions]; People v Austin, 152 AD2d 590 [2d Dept 1989] [same]; People v Ramos, 147 AD2d 718 [2d Dept 1989] [no bad faith for failure to preserve semen stains on victims’ panties; exculpatory value of evidence only speculative]; People v Mays, 295 AD2d 149 [1st Dept 2002] [no bad faith for failure to 911 tape; exculpatory value only speculative]; People v Callendar, 207 AD2d 900 [2d Dept 1994] [rape kit, no bad faith]; People v Feliciano, 301 AD2d 480 [1st Dept 2003] [People had neither a statutory nor constitutional duty to preserve bloodstained bathing suit in child rape case]). The Youngblood “bad faith” standard should not be followed in New York as a matter of state law because it allows and promotes slipshod and neglectful police practice regarding the safeguarding of evidence that may prove beneficial to the defense. Fundamental fairness requires authorities to preserve evidence even when the value of that evidence is not readily apparent to the authorities, or is not deemed by authorities to be exculpatory. It is no longer rare to open a newspaper see a photograph of a person, incarcerated for two or more decades, and maybe even scheduled for execution, to be standing outside the prison walls, freed as a result of testing upon evidence, the exculpatory nature of which has been finally realized. The rule in Youngblood fails to account for the fact that evidence that is 44 lost through no malfeasance frequently is exculpatory in nature or may prove helpful to the defense, and the price paid for that failure is often imprisonment of the innocent. The Youngblood “bad faith” standard fails to concern itself in the least with prejudice suffered as a result of the evidence no longer available. To the contrary, fairness to the accused has traditionally guided this Court in fashioning standards and rulings pertaining to a defendant’s ability to access evidence and a fair trial (see Rosario, 9 NY2d at 286). A defendant faces grave consequences when evidence is lost or destroyed, and it does not matter whether that evidence is missing as a result bad or good faith. And just like the prosecution's good-faith effort to locate, identify, and discover Rosario material does not excuse their failure to produce covered material (People v Ranghelle, 69 NY2d 56 [1986]), neither should the absence of bad faith serve to insulate the prosecutor’s from any sanction for the loss. While the failure to provide a defendant with “evidence favorable to the accused” violates due process where that evidence “is material either to the guilt or punishment” regardless of good or bad faith (Brady v Maryland, 373 US at 87), where evidence has been lost or destroyed by authorities, a defendant will usually not be able to show the favorable nature of the lost evidence because he will need 45 the lost evidence to do so 7 . The Youngblood standard imposes two insurmountable hurdles upon a defendant who has been deprived of material evidence. It requires the defendant to show, first, that the missing evidence – evidence that he has not seen and had no access to – would have been favorable to the defense; and second, that police knew it was exculpatory before it was intentionally destroyed (Youngblood, 488 US at 57, citing Napue v Illinois, 360 US 264, 269 [1959] [“The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”]). This is unfeasible and unattainable in most cases. Many states have rejected the Youngblood standard as a matter of state constitutional law 8 . The Alaska Supreme Court, rejecting the Youngblood standard, may have said it best: “The Youngblood decision could have the unfortunate effect of encouraging the destruction of evidence to the extent that evidence destroyed becomes merely ‘potentially useful’ 7 See Norman C. Bay , Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence and the Limits of Bad Faith, 86 Wash U L Rev 241, note 19 [requiring a demonstration of bad faith makes it almost impossible to establish a federal due process violation]. 8 See State v Tiedman, 162 P3d 1106, 1117(Utah 2007); Ex Parte Gingo, 605 So2d 1237, 1241 (Alabama 1992); State v Morales, 657 A2d 585, 592 – 594 (Connecticut 1995); Lolly v State, 611 A2d 956, 959-960 (Delaware 1992); State v Okumura, 894 P2d 80, 98 – 99 (Hawaii 1995); Commonwealth v Henderson, 582 NE2d 496, 496 – 497 (Mass 1991); State v Smagula, 578 A2d 1215, 1217 (New Hampshire 1990); State v Ferguson, 2 SW3d 912, 914-918 (Tennessee 1999); State v Delisle, 648 A2d 632, 642 – 643 (Vermont 1994); State v Osakalumi, 461 SE2d 504, 507 – 517 (West Virginia 1995). 46 since its contents would be unprovable” (Thorne v Dep’t Public Safety, 774 P2d 1326, 1331 n. 9 [Alaska 1989]). Under New York statutory discovery rules (CPL § 240.20), while entitled to a sanction for the failure to preserve and disclose discoverable evidence (CPL § 240.70; see Kelly, 62 NY2d at 520) when it comes to video recordings that “potentially” may be of a “discoverable” nature because their disclosure is required by the state or federal constitutions (CPL § 240.20[h]), a defendant remains in the coil of trying to prove the impossible in order to warrant the imposition of a sanction to mitigate the prejudice. Most often a defendant will not be able to show that the lost or destroyed evidence was “discoverable”, because he needs the evidence to do so. Unable to show the evidence was discoverable, he is not entitled to a sanction for its loss or destruction. This is the conundrum personified by Mr. Handy’s case and the Fourth Department ruling. The case for mandating preservation and disclosure of recordings that capture the underlying conduct resulting in criminal charges, as a matter of New York law, is clear-cut, uncomplicated and rests on compelling principles of fairness. First, it should be recognized that counsel for the accused is the only person in a position to determine the value of such evidence to the defense, and access to it by counsel should be unfettered. Supreme Court Justice Marshall recognized such: “of course, that the exculpatory value to the defense of an item 47 of information will often not be apparent to the prosecutor in advance of trial. And . . . even a conscientious prosecutor will fail to appreciate the significance of some items of information [citation omitted].” (United States v Agurs (427 US 97, 116- 17 [1976], Marshall, J., dissenting). This Court has consistently recognized this as well: the “essence of the Rosario requirement [. . .] is that a judge’s impartial determination as to what portions may be useful to the defense, is no substitution for the single-minded devotion of counsel for the accused” (People v Perez, 65 NY2d 154, 160 [1985]; see also v Jones, 70 NY2d 547). “It is defense counsel alone who has the responsibility for making the strategic judgments and doing the careful preparation required for planning and executing an effective cross-examination of the People’s witnesses and deciding whether and how to use the statements. When, as a result of the prosecutor’s violation of the Rosario rule, defense counsel has been deprived of material of which he or she is unaware of cannot otherwise obtain, there is no way, short of speculation, of determining how it might have been used or how its denial to counsel might have damaged defendant’s case.” (Jones, 70 NY2d at 552.) Certainly, the superiority of defense counsel’s perspective, focus and acuity applies in review of a recording of the crime. A recording may conflict with the witness’s testimony in subtle ways that are important to the defense. It may show something that the witness missed, failed to include or denied. It may show that the witness was not in a position to observe what he claimed, or that what he claimed is not reflected by the video. It may show seemingly innocuous details – 48 but details defense counsel would recognize as supportive of some aspect of the defense. In this case, the videotape may have shown all of these things and more, even though to Deputy Savea, it just showed a “very small part” of the incident. Nor is it “for the prosecution, or the police, to select which materials should be preserved, and which should be destroyed. Were law enforcement officials empowered to pick and choose the materials deemed worthy of preservation, then the due process rights guaranteed by Brady would be shallow indeed; Brady could be circumvented by merely destroying evidence unfavorable to the prosecution before it is demanded by the defendant.” (People v Springer, 122 AD2d 87, 90 [2d Dept 1986], lv denied 69 NY2d 717 [1986] [internal citation form modified]; citing United States v Bryant, 439 F2d 642, 648 [DC Cir 1971]; People v Saddy, 84 AD2d 175, 178 [2d Dept 1981]; People v Kelly, 62 NY2d at 520.) Second, disclosure of recordings should be required because the value of such recording – be it exculpatory, favorable or helpful to the defense – can rarely be determined after it is destroyed and the defense deprived of its use. “Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and very often, disputed” (Trombetta, 467 US at 486). As this Court rightly asked in Rosario, “[u]ntil [defendant’s] attorney has an opportunity to see the statement . . . how can he effectively answer the trial judge’s assertion that it contains nothing at 49 variance with the testimony given or, at least, useful to him in his attempt to discredit such witness?” (Rosario, 9 NY2d at 290). Equally impossible is the burden placed upon defendants by the Fourth Department holding in this case which requires a defendant to show that the lost or destroyed recording he has never seen is exculpatory or helpful before a sanction is warranted for its loss. In People v Barnwell (4 NY3d 303 [2003]), a case where defendant’s request for DNA testing pursuant to CPL 440.30 [1-A] had been denied by the trial court without a hearing, this Court made clear that the People, not defendant, bore the burden to show whether evidence existed and could be tested, and that conclusory statements that the evidence was no longer available were insufficient to meet that that burden. Third, requiring law enforcement agencies and prosecutors to preserve and disclose video recordings created by them or in their possession will not only advance that same basic fairness identified in Jackson, but also at the same time will serve to reduce Brady violations and possible Brady violations that occur when evidence is lost or destroyed before its contents or value is known. To safeguard the defendant's rights under Brady, the prosecution, as well as law enforcement officials, are under a duty to diligently preserve all materials in their possession which may be subject to disclosure (Martinez, 71 NY2d at 940; Kelly, 62 NY2d at 520), and where “discoverable evidence gathered by the prosecutor or 50 its agent is lost, the People have a heavy burden of establishing that diligent, good- faith efforts were made to prevent the loss. Otherwise, the trial court will exercise its discretion in choosing an appropriate sanction.” (People v James, 93 NY2d 620, 644 [1995] [emphasis added, internal quotations and citations omitted]). This rule should extend to circumstances where a material recording is lost or destroyed as there is always the haunting question that is all too often impossible to answer: did it contain Brady material, or could it have been helpful to the defense? That question is alive and well in this case. Yet without even having looked at the videotape or knowing whether one had been made, the prosecutor represented to the court and defense, “I have nothing to indicate there was any Brady” (R 89), notwithstanding there was a possibility of the recording containing Brady material based, at a minimum, upon the fact that defense counsel had been provided with a medical report revealing that one of the hand injuries reported by a deputy involved in the November 8th incident was the result of the deputy punching Mr. Handy (R 60). Just as with Rosario materials, where it is an abuse of discretion to impose no sanction where the People have failed to exercise due care in preserving prior statements of witnesses and the defendant is prejudiced by the loss or destruction (see People v Branch, 80 NY2d 610, 616 [2002], citing People v Wallace, 76 NY2d 953, 955 [1990]), it should be an abuse of discretion for a court 51 to impose no sanction when the People have failed to exercise due care in preserving material recordings of conduct underlying criminal charges. The issue of access to evidence on the basis of fundamental fairness, when that evidence may or may not contain Brady information, often arises in the context of a defendant’s request for the identity of a confidential informant. There is no statutory requirement to disclose such information and whether the sought after information would be Brady or otherwise be helpful to the defense is usually unknown, thus paralleling the barriers to disclosure at force in this case 9 . In Roviaro v United States (353 US 53 [1957]), the United States Supreme Court held that providing the defense access to the identify of a material witness (confidential informant) who “might have been helpful to the defense” as his testimony may have disclosed entrapment or created doubt as to identity or the contents of the package (heroin), was essential to a fair determination of the case. Citing Roviaro, this Court has recognized that the strongest case for requiring disclosure of a confidential informant is where it appears the informant was an eyewitness or participant in the alleged crime (People v Goggins, 34 NY2d 163, 170 [1974]). When disclosure bears directly on the issue being tried, “defendant’s right to the full benefit of the adversary system should not be denied, not qualified by 9 In those cases there is a competing interest not present here -- considerations of law enforcement need for privacy. 52 impairing his right by interposing [another’s assessment of] whether the disclosure is relevant or material.” (Id. at 169, citing People v Rosario, 9 NY2d at 290.) Thus, even though a defendant cannot establish that the confidential informant’s testimony would be exculpatory or does contain Brady information, when clearly material to an issue at trial, that materiality carries the day to require disclosure (see id. at 170). A recording that may have captured footage of the crime or circumstances surrounding it is most likely more reliable and more accurate evidence of that which transpired than is a confidential informant. And as to a recording, there is no countervailing policy consideration at play (see id.). Just like this Court has maintained in the context of Rosario and confidential informants (Goggins), the right to access evidence should not be encumbered by another’s assessment of its value to the defense (see id. at 169). Similarly, in cases where a defendant seeks the production of evidence by mean of a subpoena duces tecum, he is often unable to specifically demonstrate the material or relevant character of the evidence he seeks because he has not seen it. There, defendants are not required to show that the records or evidence sought are “‘actually’ relevant and exculpatory” (People v Kozlowski, 11 NY3d 223, 242 [2008], quoting People v Gissendanner, 48 NY2d 543, 550 [1979]). Instead, a reduced standard is applied: a “proffer of a good faith factual predicate sufficient 53 for a court to draw an inference that specifically identified materials are reasonably likely to contain information that has the potential to be both relevant and exculpatory” (id. at 241). “In applying this standard, we must give due regard to the accused’s right to a fair trial. (Pennsylvania v Ritchie, 480 US 39, 56 [1987]).” (Id. at 242 [internal citation form modified].) Certainly, as discussed below, the video recording in this case had the potential to be “relevant and material to the determination of guilt or innocence” (Gissendanner , 48 NY2d at 548), as it may have supported Mr. Handy’s testimony, demonstrated a lack of intent, contradicted the testimony of the deputies, or shown the injury to have been sustained as a result of punching Mr. Handy. The contents of the video recording Deputy Saeva watched, and the contents of any other recording captured by the other cameras, will never be known. Clearly what has been destroyed carried great potential to be useful to the defense – maybe even Brady material. New York provides strong protections of a defendant’s access to information and evidence (see e.g. Rosario, 9 NY2d 286; People v White, 40 NY2d 797 [1976][defendant entitled to pre-trial testing of drugs in People’s possession for independent testing]; People v Kelly, 62 NY2d 516 [duty to preserve evidence]; Goggins, 34 NY2d 163), and while under federal law, the question of whether a sanction should be imposed turns solely on whether the loss of evidence was a result of bad faith on the part of law enforcement (see 54 Youngblood), Mr. Handy urges this Court to reject the federal standard as other states have done (see fn 8, supra at 45), and to consider the effect of the lost evidence upon Mr. Handy’s right to a fair trial, fundamental fairness and due process under New York law 10 . D. Mr. Handy has been Denied Access to “Material” Evidence. According to Deputy Saeva, surveillance cameras were positioned in cell block “C” and cell block “B”. He knew that the images that pass through the cameras to the monitors were recorded (R 314). While Deputy Saeva had watched the images recorded by the cell block “C” camera – and was able to see what he described as a very small part of “the incident” – he was unable to describe what he had seen on the video as about a year had passed since his viewing of it (R 315). Additionally, Deputy Saeva could not recall whether he watched a recording from the cell block “B” camera. Clearly, the verbal confrontation and subsequent physical skirmish started in cell block “C”. It continued from Mr. Handy’s cell to the doorway between “B” and “C” blocks, and once the doorway was unlocked, through cell block “B” to the 10 “We have long recognized that while this court is, of course, bound by the decisions of the Supreme Court in matters of Federal law, in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this Court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States.” (People v Alvarez, 70 NY2d 375, 378-79 [1987] [internal quotation marks and citations omitted]). 55 corridor and elevator (R 307 - 319). Deputy Saeva initially described the cell block “C” camera as “facing” Mr. Handy’s cell. However, he later said, from that camera you cannot see into the cell, because the camera is not directly facing the cell because it is in a corner (R 313). “So you capture on the left hand side stuff also. The camera showed, I think, only part of his doorway, but not much.” (R 314). He conceded that the recording he saw contained a small part of the incident, which he qualified as “very” small (R 315). According the Deputy Saeva, the staff that responded came into “C” block, where Mr. Handy started yelling, kicking and refused to walk (R 298). He described Deputy Schliff as one of the first responders to come into “C” block (R 310). Although Schilff first indicated that he did enter “C” block (R 339), he later said that he did not (R 342). Deputy Schliff’s testimony suggested that his injury was sustained as he and other deputies struggled with Mr. Handy while in “B” block, through which they passed. According to Saeva’s testimony, the “B” block camera would have recorded their passage and the struggle as Mr. Handy was “escorted” through “B” block once they had passed through the “blind spot” where the shower was located (R 317). At a minimum, Deputy Saeva’s testimony makes clear that at least one camera did capture part of the incident, even if he believed it to be a “very” small part, and there is a likely probability that the other cameras 56 along the route, which clearly spilled over from one camera area into another camera area, recorded other portions of it. The requisite element of intent in this case was strongly contested by the defense, and even crediting the People’s proof, was lacking (see Point One, supra). The missing video recording(s) may have supported the defense contention that Mr. Handy did not intend to cause physical injury. There was testimony that deputies were trying to handcuff Mr. Handy, wrenching his arm behind his back to do so (R 403). The video recording may have shown Mr. Handy reacting to pain, or trying to protect himself from the actions of the deputies. The video may have shown excessive force being used on Mr. Handy. Or the recording may have been consistent with a man who was simply thrashing about in an attempt to prevent the deputies from grabbing his legs and shackling him. All witnesses agreed that Mr. Handy made no threats of bodily harm (R 306, 341). With the critical issue of intent before the jury, under the circumstances of this case, the recording, even if it only showed a small part of the incident, or what led up to the scuffle or the injury, or what was going on at the time of the injury inflicting conduct, would have been directly relevant to the issue of intent (see e.g. People v Anderson, 222 AD2d 442 [2d Dept 1995] [prejudice established where missing evidence was pertinent to critical issue in case and evidence could have been helpful to defense]). Therefore, while it is unclear where, in relation to the 57 cameras, Mr. Handy and the group were at the time Deputy Schliff was injured, the fact that Mr. Handy cannot demonstrate precisely that a camera was trained on the exact location at the exact time of the injury does not matter because all of the circumstances surrounding the conduct that resulted in the injury are important on the issue of intent. Moreover, it was the destruction of the evidence that makes it impossible to show what was recorded. In the missing evidence case of People v Joseph (86 NY2d 565 [1995]), the People contended that defendant’s claim of prejudice was too speculative. This Court rejected that claim, pointing out that “[s]ince it was the conduct of the police that resulted in the loss of the envelopes and made it impossible to know whether the information they contained was consistent with the People’s position at trial, the People cannot now be heard to complain that the defendant’s showing of prejudice is not sufficiently definite and clear” (Joseph, 86 NY2d at 572 [internal citation omitted]). The defense in Joseph was that the police, who arrested both the seller and the buyer of the drugs, had confused the two, and that defendant was the buyer and not the seller. Certain facts at trial could be viewed to support that claim, such as the fact that the other arrestee had substantially more money on his person when arrested than did defendant and that the vials recovered from the other arrestee were submitted with a voucher that noted the crime to be criminal sale. Given the 58 defense theory, the information contained on the destroyed evidence envelopes “might have provided additional support for the defense position.” (Id. at 571.) Unlike the defendant in People v Haupt (71 NY2d 929), the defendant in Joseph did not seek the drastic remedy of dismissal of charges or preclusion of testimony, but rather requested an adverse inference instruction which was found to be “appropriate and proportionate” to the harm. Mr. Handy presented a viable defense (lack of intent) and the loss or destruction of the recordings in this case by the Sheriff’s Department, like in Joseph, makes it impossible to demonstrate with particularity the degree of prejudice suffered by that loss. Certainly, the jury’s request that the definition of intent be read to them again, and request for Deputy Schliff’s testimony relating to how his injury happened (R 520, 551), show that the missing evidence in this case, just like in Joseph, may have provided useful additional support for the defense at trial. The video recording may have captured footage that was consistent with Mr. Handy’s testimony, consistent with other evidence that was indicative of an absence of intent, or inconsistent with the testimony of prosecution witnesses. Although in People v Goggins (34 NY2d 163), a showing that the missing evidence would have “likely” been favorable was imposed, the rationale for that higher standard is limited to cases where a confidential informant is missing. Given the itinerant nature of people who of their own accord may disappear for reasons 59 unrelated to governmental action, a defendant is required to show that the missing witness would “likely to have been favorable to some degree in tending to exculpate the defendant, or alternatively, . . . a significant likelihood that the witness’s testimony could be impeached to a meaningful degree creating reasonable doubt as to the reliability of the prosecutor’s case.” (Id. at 311.) But here, where the missing evidence is a video recording that was created and possessed solely by authorities, who alone were responsible for the failure to safeguard it, there is no similar basis upon which to impose the higher standard. A recording created by and kept in the possession of a law enforcement agency enjoys no such capabilities of wanderlust. The Sheriff’s Department here failed to safeguard material evidence of which it had exclusive control – a simple and readily achievable task. Nor is this a case where the record makes clear that the defendant has not been prejudiced by the missing evidence (see e.g People v Carpenter, 88 AD3d 1160 [3d Dept 2011] [People conceded surveillance recording that captured assault in jail was discoverable, but their failure to preserve it did not require sanction where a recording from a different video camera did capture the assault and was admitted into evidence]; People v Perez, 255 AD2d 403 [2d Dept 1998] [no abuse of discretion in failing to sanction People’s destruction of videotape where evidentiary value was questionable and two still photographs from the video were 60 admitted into evidence and testimony established they were of the same quality as the video]; People v Mitchell, 216 AD2d 156 [1st Dept 1995] [no adverse inference required where People’s inadvertent failure to preserve videotape of robbery resulted in no prejudice to defense in this identification case as the only discernible feature on the lost tape was the perpetrator’s race]). Similarly, in the realm of 911 recordings, the inadvertent destruction has been held by several Appellate Divisions to not warrant sanctions where there the record shows a lack prejudice (see People v Diaz, 47 AD3d 500 [1st Dept 2008] [no prejudice and therefore no sanction warranted where defendant was given “Sprint” report reflecting statements made by the witnesses to the 911 operator]; People v Hagen, 247 AD2d 405 [2d Dept 1998] [same]; People v Barber, 247 AD2d 485 [2d Dept 1998][same]; People v Griffin, 300 AD2d 743 [3d Dept 2002]; People v Brister, 239 AD2d 513 [2d Dept 1997]; People v Seaman, 238 AD2d 449 [2d Dept 1997]). However, when a 911 recording actually captures sounds of the crime as it occurs, as it did in the now famous shooting of Trayvon Martin, where cries for help were followed by the sound of gunshots 11 the fair administration of justice requires that 11 http://www.tampabay.com/specials/2012/audio/trayvon_martin_911. 61 such evidence be preserved and disclosed even in the absence of a statutory duty to do so 12 . Nor is this a case where the lost or destroyed evidence is not relevant to an issue at trial (see e.g. People v Haupt, 71 NY2d 929 [destruction of weapon and cartridges 16 years after the crime unrelated to insanity defense]; People v Jardin, 88 NY2d 956 [1996] [failure to preserve and collect semen samples did not violate due process where identity was not at issue]). Rather, this is a case where material evidence has been lost or destroyed that appeared to have captured either the conduct at issue or the surrounding circumstances, and may have supported a viable defense (see People v Gomez-Kadawid, 66 AD3d 1124 [3d Dept 2009] [new trial ordered where People failed to preserve physical evidence that may have supported the defense]). Nor can it be said Deputy Saeva’s limited testimony about what he recalled seeing on the tape was an adequate substitute for the missing tape that served to eliminated any prejudiced cause by its loss (compare People v Diaz, 47 AD3d 500). This Court has recognized that a police officer’s testimony about the contents of a lost or destroyed police document is not an acceptable substitute for 12 While at first blush the 911 call from a woman reporting someone screaming for help may not appear to be helpful to the defense (and perhaps defendant’s attorney wished the recording had been destroyed before anyone heard it), analysis of the recording by defense attorneys or experts may prove otherwise. The value of such recordings and the question of whether it might be helpful to the defense cannot always be readily ascertained by police or prosecutors on face value. 62 the document itself (Joseph, 86 NY2d at 571-572). That is because “fallibility of human memory makes the necessary flawless reconstruction all but impossible,” and both documents must be available for comparison before a conclusion that they are “duplicative equivalents” can be made (id.). Certainly, a police officer testifying about a video recording he or she had watched is subject to not only same fallibility, but more, as a retelling of what was seen will never include an accurate description of every facet of the recording. Additionally, Deputy Saeva was unable to recall what he had seen, or whether he had seen more that the recordings from the one camera. His conclusion that the recording contained only a “very small part” of the incident cannot serve as a basis to conclude that Mr. Handy suffered no prejudice. Even if it showed only a “very small part,” of the incident, it may have been a critical small part. Moreover, defense counsel was the only person in the position to determine what aspects of the recording were useful to the defense. Not knowing what was depicted on the recording, or how defense counsel may have used it, like a Rosario violation involving the loss or destruction of prior witness statements, “[e]valuating the damage caused by a Rosario violation . . . necessarily depends on a factor which is not in the record and which cannot be known - - the operation of defense counsel’s mind and what different course might have been pursued if he had possessed the material” (Jones, 70 NY2d at 552). 63 Mr. Handy has demonstrated the material nature of the unavailable videotape evidence, and the record does not establish a lack of prejudice. E. The Trial Court’s Failure to Impose Any Sanction for the Lost or Destruction of the November 8th Videotape(s) Requires Reversal. When the People or their agents are in possession of discoverable material, they are under a duty to preserve such evidence, and in the event such evidence is lost or destroyed, sanctions will be imposed (see Kelly, 62 NY2d at 520). While the nature and extent of the sanction to be imposed is a matter vested to the trial court’s discretion, in this case the trial court failed to impose any sanction for the destruction of jail surveillance tapes relating to the November 8, 2006 charges, even after it was revealed that prosecution witness Deputy Saeva had reviewed at least one of the destroyed recordings (see Joseph, 86 NY2d 565 [where there is a destruction of Rosario material with a colorable claim of prejudice the court must impose a sanction and the failure to do so requires reversal]; Wallace, 76 NY2d 953). Where evidence is lost or destroyed, “the trial court’s attention should focus primarily on the overriding need to eliminate prejudice to the defendant” (Martinez, 71 NY2d at 940), and while the choice of sanction is left to sound discretion of the trial court (Kelly, 62 NY2d at 521), the failure to impose any sanction for the loss or destruction of the recording(s) in this case was an abuse of discretion. Even in Arizona v Youngblood (488 US 51), an adverse inference 64 instruction was given to the jury, which Justice Steven, concurring, found significant in reaching his position that Mr. Youngblood had not been prejudiced as a result of the inadvertent destruction of evidence (Youngblood, 488 US at 59 - 60 [Stevens J., concurring]). In People v Martinez (71 NY2d 937), where the possibility of prejudice to the defendant was found to be remote, an adverse inference charge as to the destruction of written notes made immediately prior to radio broadcast that contained the perpetrator’s description was the proper remedy to eliminate any potential prejudice. Where the prosecution fails to preserve evidence, the sanction can be as severe as dismissal of charges impacted by the loss, the preclusion of testimony related to the lost evidence, or as minimal as an adverse inference charge to the jury (Kelly, 62 NY2d at 521). The sanction of an adverse inference is the least severe of possible sanctions, and where the lost potentially exculpatory evidence is highly significant, and its full details unknown but may have been pertinent to a viable defense, courts have concluded that the only appropriate response is preclusion of testimony or dismissal of charges. For instance, in People v Torres (190 AD2d 52 [3d Dept 1993]), the defendant presented what the Third Department deemed a viable agency defense to narcotics charges. The undercover officer had worn a body wire during the transaction, and a Deputy Sheriff destroyed the tape although no bad-faith was found. The Third Department 65 explained: “Had [defendants’] version of the September 25, 1995 conversation been corroborated by the missing tape, it would have severely undercut the People’s case,” and “given the importance of the September 25, 1995 conversation to defendants, we conclude that the only appropriate sanction is the preclusion of all testimony relating to that encounter” (Torres, 190 AD2d at 56). Likewise, in People v Saddy (84 AD2d 175 [2d Dept 1981]), where a defendant was charged, inter alia, with drug sales, a recording of the transaction created from the body wire worn by the undercover officer (or confidential informant) was erased. The jury had sought additional instructions on the defense of agency during their deliberations, and the agency defense may have been supported by the missing recording. The Second Department concluded that there was “a significant possibility that a jury, had it been able to hear the destroyed tapes, would have acquitted the defendant,” of the sale counts. The Court stated, “[i]n these circumstances, we conclude that the prosecution should be sanctioned for the erasure of the tapes, and that the only appropriate disposition is reversal of the two sale convictions. Since the prosecution, by its conduct, has deprived the defendant of potentially valuable material relating to his agency defense, it would be unfair to subject the defendant to a new trial on the sale counts of the indictment, even if portions of [undercover or CI] testimony were ordered stricken” (Saddy, 84 AD2d at 179-80; see also People v Pantino, 106 AD2d 412 66 [2d Dept 1984] [conviction reversed and indictment dismissed where lost tape recording of conversation between undercover officer and defendant “may well have constituted Brady material]). In People v Springer (122 AD2d 87 [1986]), a robbery in an Arby’s restaurant was captured by camera that took ten photographs, all of which were handed over the police. The issue at trial was identification, and only one eyewitness identified defendant, who was arrested over a month after the robbery. Noting that the evidence had been “irretrievably lost,” the Second Department said “[i]t will never be known what the photographs showed, or how clearly the perpetrators were depicted” (id. at 91). While no showing of bad faith in the loss of the photographs was made, the high degree of prejudice sustained – “the defendant has been deprived of material with great potential value to his defense” – compelled the remedy of dismissal (id). Indeed, when Rosario material is lost or destroyed and its loss makes it impossible to quantify the harm, this Court imposed a per se reversible error rule (People v Consolazio, 40 NY2d 446 [1976]) although it was later modified by statute (CPL 240.75). The Maryland Court of Appeals, in a 2010 decision that examined the effect of the Youngblood bad faith standard, and the growing rejection of that standard by states, pointed out that even some states that adhere to the Youngblood standard allowed or encouraged missing evidence instruction (Cost v State, 10 A3d 184, 67 194-195 [2010]). “In these cases, we see an emerging consensus that a universal bad faith standard does not go far enough to adequately protect the rights of a person charged with a crime. The courts have seen the bad faith requirements as a potentially bottomless pit for a defendant’s interest in a fair trial, and stepped back from the brink.” (Id. at 195.) The court went on to say that “to insure a fair trial, the missing evidence jury instruction in a criminal case should not be limited to the Youngblood bad faith standard” (id.). Noting the unfair advantage created when one party is allowed to destroy evidence, the court found application of the missing evidence inference jury instruction would help insure that the interests of justice are protected (id. at 197; see also Lolly v State, 611 A2d 956, 959-960 [Delaware 1992] [Once it has been established that the State must bear responsibility for the loss of material evidence, an appropriate jury instruction is required as a matter of due process under the Delaware Constitution]). When surveillance recordings in possession of the police or prosecution are lost or destroyed, application of a sanction such as an adverse inference jury charge inference is often determined to be a proper remedy to eliminate or mitigate the prejudice suffered as a result of the loss (see e.g. People v Conley, 70 AD3d 961 [2d Dept 2010] [adverse inference appropriate for failure to preserve video recording]; People v Jones, 47 AD3d 446 [1st Dept 2008] [adverse inference charge eliminated any prejudice caused by People’s loss of ATM vestibule 68 videotape]; People v James, 289 AD2d 3 [1st Dept 2001] [adverse inference instruction was appropriate sanction for the destruction of video surveillance and 911 tape where there was no basis to believe the missing recordings were exculpatory and no indication of bad faith]; People v Owens, 282 AD2d 296 [1st Dept 2001][adverse inference charge proper remedy for erasure of 911 tape]; People v LaMountain, 249 AD2d 584 [3d Dept 1998] [adverse inference charge proper sanction where court unable to identify any prejudice caused by destruction of tape recording]; see also People v Adams, 81 AD3d 1427 [4th Dept 2011] [adverse inference charge proper where there may have been a video recording of the DWI stop]). The failure to preserve surveillance recordings is often an issue in the context of a civil action, and an adverse inference charge is often found to be an appropriate sanction (see Tomasello v 64 Franklin Inc, 45 AD3d 1287 [4th Dept 2007]). In Enstrom v Garden Place Hotel (27 AD3d 1084 [4th Dept 2006]), the Fourth Department noted that spoliation sanctions may be appropriate even where the destruction of evidence is through negligence rather than willfulness (id. at 1086). And a more drastic sanction is appropriate where the destruction of evidence deprives the moving party of the ability to establish his case or defense (Iannucci v Rose, 8 AD3d 437 [2d Dept 2004]). In Minaya v Duane Reade International, Inc. (66 AD3d 402 [1st Dept 2009]), a video recording that may 69 have shown the stairwell at issue before and during the plaintiff’s accident, was destroyed or lost. Finding that the unavailability of that video recording may have impaired the defense, an adverse inference was warranted (see also Barone v City of New York, 52 AD3d 630 [2d Dept 2008] [adverse inference required where videotape of surveillance camera lost]). If sanction for a lost video recording that may have shown relevant information leading to a possible impairment of the defense is warranted in a civil case, it is difficult to reconcile a lesser standard in a criminal case. When the prosecution or its agent is unable to produce discoverable evidence that had been in its possession, the People bear “a heavy burden of establishing that diligent good faith efforts were made to prevent the loss” (Kelly, 62 NY2d at 520), and here there was no such showing. And how the evidence came to be lost or destroyed in this case, was not established. While Deputy Saeva testified that he watched the video recording, whether the recording was no longer available because he or someone else intentionally erased it or because the Sheriff’s Department failed to take steps to preserve the recording knowing that it would be recorded over, was not established (see Matter of Rodriguez v Coombe, 238 AD2d 691 [3d Dept 1997] [where record did not provide explanation for why the videotape of an alleged assault upon jail staff was allowed to be routinely recycled despite awareness of the seriousness of the incident, the failure to take 70 steps to preserve the videotape could have been the result of bad faith]). The People failed to establish that diligent efforts were made to prevent the loss, and Mr. Handy was denied access to critical evidence that may have supported his position and contradicted the People’s evidence. The People may contend, as they did in their brief at the Appellate Division, that Mr. Handy failed to request an adverse inference instruction. However, the Appellate Division, in the memorandum decision, did not find Mr. Handy’s claim unpreserved or invoke interests of justice jurisdiction (Handy, 83 AD3d 1454). And review of the record establishes that Mr. Handy did request an adverse inference charge for the failure to preserve the November 8th recording. During the charge conference, after it had finally come to light that there was at least one recording made, counsel said the following after specifically noting that the testimony of Deputy Saeva established at least one recording of the November 8th alleged assault (count two) had existed. “Either way, there was a video and the sheriff’s department failed to preserve that recording. We made our request for preservation as soon as we could. It was later, when we received discovery that we received confirmation that there was definitely, in our opinion, a video with regard to count three. And it was during the trial that we received confirmation that there was a video with regard to counts - - basically counts one and two. So for those reasons, regardless of my argument with regard to what the language should be on the inference or presumption, I think it should be applied to both counts, all counts basically. 71 (R 445). Counsel had requested that the adverse inference charge be in the form of a mandatory presumption that the missing evidence would not have been supported the People’s contention that Mr. Handy intentionally kicked Deputy Schliff (R 549). Although written request to charge mistakenly refers to count one of the indictment, the content of the written request clearly shows the request to have been directed at the count relating to Deputy Saeva’s testimony of the missing recording and the issue of whether Mr. Handy intentionally kicked Deputy Schliff. In the oral request to charge, defense counsel made clear that he was requesting the charge as to all counts of the indictment, despite initially having specifically singled out counts one and two (R 445). The trial court instead only gave a watered-down version of the requested charge and did so only on count three of the indictment (January 8th incident) (R 444, 501, 518). Finally, it should be noted that at no point below have the People contended that the Monroe County Sheriff’s Department was not under a duty to preserve the evidence they created and possessed (see Kelly, 62 NY2d 516); that knowledge of evidence created by the Sheriff’s Department was not imputed to them (see People v Wright, 86 NY2d 591, 598); or that they did not have access to or construction control over the surveillance recordings (see James, 93 NY2d 620). Thus, they may not now, for the first time on appeal, make such a claim (see e.g. People v Brown, 99 NY2d 488 [2003] [where People’s request for missing witness 72 instruction was given, and defendant failed to argue at the trial court that he did not have control over the missing witness, defendant could not argue for first time on appeal that missing witness charge was error because he lacked control of the witness]). In People v Santorelli (95 NY2d 412 [2000]), where the issue of whether the prosecutor had control over reports (involving an investigation separate from the prosecution at issue) in the possession of an independent federal law enforcement not subject to State control (the FBI) was fully litigated in the trial court, this Court found no basis to disturb the trial court’s factual determination that the People did not have control of the documents or the federal agency. Indeed, the record in that case showed that the FBI had refused to provide the documents to the People, and with no possession or control, no Rosario violation occurred. On the other hand, where the existence of evidence is “readily ascertainable by the prosecutor, there is no reason to dilute the Rosario obligation by holding that defense counsel should have himself subpoenaed the [evidence]” (People v Rhanghelle, 69 NY2d 56, 64 [1986]). F. Conclusion The same basic consideration of fairness underlying this Court’s Rosario ruling compels the like disclosure and preservation requirements for recordings that capture some relevant part of the criminal transaction. Just as the deprivation of Rosario material goes to the heart of defense counsel’s ability to provide 73 meaningful representation as the defense is denied the opportunity to (1) make the necessary strategic judgments and do “the careful preparation required for planning and executing an effective cross-examination,” and (2) explore potential areas of weakness in the prosecution’s evidence, so too does the deprivation of a recording of the crime. But when a recording of the crime is destroyed, more is lost than just the opportunity for effective cross-examination. Just as with Rosario, the state should be required to disclose recordings of the crime in their possession regardless of any Brady component, and disclosure should not dependent upon an assessment by the prosecution or police of its value or usefulness. Because the trial court failed to impose any sanction for the People’s destruction or loss of material evidence that may have supported the defense, Mr. Handy’s conviction should be reversed. 74 CONCLUSION WHEREFORE, MR. HANDY RESPECTFULLY REQUESTS THAT THE CONVICTION BE REVERSED AND THE INDICTMENT DISMISSED ON THE BASIS OF THE PEOPLE’S FAILURE TO PRESENT LEGALLY SUFFICIENT EVIDENCE. IN THE ALTERNATIVE, MR. HANDY REQUESTS THAT THE CONVICTION BE REVERSED AND A NEW TRIAL ORDERED. Dated: May 24, 2012 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: JANET C. SOMES Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4329
