The People, Respondent,v.Everett M. Durant, Appellant.BriefN.Y.October 20, 2015Brief Completed: December 3, 2014 Geoffrey Kaeuper 10 Minutes To Be Argued By: Time Requested: STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- EVERETT M. DURANT, Defendant-Appellant. BRIEF FOR RESPONDENT APL - 2014-00121 SANDRA DOORLEY District Attorney ofMonroe County Attorney for Respondent By: Geoffrey Kaeuper Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4674 Fax: (585) 753-4576 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTION PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS POINT 1 The trial court did not abuse its discretion in denying defendant's request for an adverse inference charge based on police not recording his interrogation. A. Whether to give the jury an adverse inference charge was a matter for the trial court's discretion and the court did not abuse that discretion. B. Even if defendant had been entitled to an adverse inference charge as a matter of law, reversal would ii, iii 1 2 3 6 7 not be necessary. 13 CONCLUSION 15 TABLE OF AUTHORITIES FEDERAL CASE United States v Rose, 104 F3d 1408 (1st Cir 1997) ... .. . ... . . .. .. ..... ... ... ..... .... 12 STATE CASES People v Blake, 24 NY3d 78 (2014) .. .......... . .... .. ....... . ...... .. ....... . ... 13 People v Durant, 112 AD3d 1366 (2013) . ... .... ... .. ......... .. .. . ... . ...... . ..... 2 People v Gonzalez, 68 NY2d 424(1986) ................................... .... .... 6 People v Greaves, 94 NY2d 775 (1999) .. .... ... .. . . ... ...... . .... .. . .. ... ..... ... 13 People v Hammons, 68 AD 3d 1800 (4th Dept 2009), lv denied 14 NY3d 801 (20 11) . . . . . . . . . 2 People v Handy, 20 NY3d 663 (2013) . ............................................ 6 People v Hayes, 17 NY3d 46 (20 11) .. .. . . .. .. .. . .. . . .. .. .. . .. .. .. . . .. . .. .. .. . . .. . 9 People v James, 93 NY2d 620 (1999) . .. .. . . .. . . .. . . .. .. . . .. . . . . .. .. .. . . .. .. . .. . .. 6 People v Knight, 87 NY2d 873 (1995) ....................... ... . . .. .. ......... .... 8 People v McMillon, 77 AD 3d 1375 (4th Dept 201 0), lv denied 16 NY 3d 897 (20 11) . . . . . . . . . 2 People v Reid, 69 NY2d 469 (1987) ........ . ...................................... 8 People v Saunders, 64 NY2d 665 (1984) ......... .. ..... . . .. .......... . ......... 7, 13 People v Vereen, 45 NY2d 856 (1978) .... . . . .... .. .. .. ... ... ... . ... . .......... .. . . 8 People v Whalen, 59 NY2d 273 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 STATUTES CPL 300.10 .................................................................. 7 Penal Law§ 160.10 .... .. ...... . . . . . ....... .... ... ....... .. ............. ... ... 2 MISCELLANEOUS AUTHORITY Senate Bill S4484-2013 ...... ....... .. . .... .. ............... ......... .......... 10 -iii- QUESTION PRESENTED Question: Did the court abuse its discretion in denying defendant's request for an adverse inference instruction based upon the fact that his statements to police were not video-recorded? Answer of the Trial Court: No. Answer of the Appellate Division: No. 1 PRELilVIINARY STATEMENT Defendant Everett M. Durant was convicted, upon a jury verdict rendered on May 6, 2009, of robbery in the second degree (Penal Law§ 160.10 [1]) in Supreme Court, Monroe County (Hon. Alex R. Renzi, J.). Defendant was sentenced on June 10, 2009, as a second felony offender, to a detenninate term of incarceration of five years with five years of post-release supervision. There has been no stay of the sentence, and defendant is currently under post-release supervision (http://nysdoccslookup.doccs.ny.gov/ [DIN: 09-B-1914 ]). Co-defendant Natavious L. Peterson pleaded guilty to a reduced charge and has not pursued an appeal. The Appellate Division, Fourth Department, unanimously affirmed the judgment of conviction (People v Durant, 112 AD3d 1366 [2013]). As to the issue that is now before this Court, the Appellate Division held that "County Court properly denied [defendant's] request for an adverse inference charge concerning the failure of the police to record his interrogation electronically" (id. at 1367, citing People v McMillon, 77 AD3d 1375 [4th Dept 2010], lv denied 16 NY3d 897 [2011] and People v Hammons, 68 AD3d 1800 [4th Dept 2009], lv denied 14 NY3d 801 [2011]). Judge Eugene F. Pigott, Jr. thereafter granted defendant leave to appeal to this Court (23 NY3d 962 [2014]). 2 STATEMENT OF FACTS At approximately 10:00 P.M. on November 28, 2008, Emmett Hunter was walking on North Clinton A venue in the City of Rochester when he observed a group of five or six teenagers standing near the intersection of North Clinton Avenue and Kohlman Street (Appendix ["A"] 55, 57-59). As Hunter walked through the group, one of the teenagers, whom he identified in court as defendant, grabbed him from behind and put him in a "choke hold" (A 59-61, 64-65). Hunter, able to use his cell phone to call 911, saw that defendant had his wallet and informed the operator that he had just been robbed (A 60-61,63-65, 82). The group then began to beat Hunter up (A 61). Defendant pulled Hunter's hood over ' his head and took part in kicking and punching him (A 63-65). Eventually, Hunter managed to cross the street and escape from the group (A 61-66, 68, 86-87). The police arrived and located Hunter's wallet behind the store at the intersection where the incident occurred (A 71-75). They found defendant a short distance away and returned him to the scene (A 150-151), where Hunter identified him as one of the assailants (A 76-77, 104-108, 116-117). Defendant was then transported to the "east side" police station, where he was placed in an interview room (A 117-118). Investigator Trevor Powell read defendant Miranda warnings and he agreed to waive his rights and speak to police (A 120-123). 3 Defendant told the Investigator that he had been walking with his sister and became involved in a fight on North Clinton Avenue (A 123-124). Investigator Powell wrote down defendant's statement (A 125-126, 139), indicating that defendant observed an individual whom he knew as "Little C" and his brothers "begin to crowd" a black man on his cell phone, and then they "jumped" that man (A 127-128, 286). Defendant admitted that he punched the man with the cell phone two or three times, kicked him once, and pulled the man's hand from his wrist (A 128, 286-287). But defendant denied taking any property from the man on the cell phone (A 128, 141-142, 144, 287). Defendant reviewed and signed his statement (A 125-127, 139). Investigator Powell did not make an audio or video recording of defendant's interview (A 133). He did not have access to a "tape recorder" at the east-side station, though he had seen them at the west-side station (A 133-134). The Rochester Police Department has "video tape machines" at the Public Safety Building, but not at the east-side station (A 134). "It is common practice when a crime occurs on the east side to go to the east side office. If it is a homicide you take the person back to the Public Safety Building" (A 142). This crime, therefore, required that he take the suspect to the east-side station where audio and video equipment was not available (A 142). 4 Defendant's sister, Jasmine Durante, testitied on his behalf. Durante stated that she was walking home from her grandmother's house with defendant at approximately 10:00 P.M. on November 28,2008 (A 156-157). They stopped to talk to defendant's friend, "Little C," near a store at the comer of North Clinton Avenue and Kohlman Street, and she observed Hunter being chased by a group of men on North Clinton Avenue (A 157-158, 161-166). Durante was a couple of feet away, standing on the sidewalk, when the men were kicking and hitting Hunter (A 158-159, 172-173, 176). She observed defendant hit and kick Hunter after Hunter said "something,. (A 172, 174-175), but she did not observe defendant take any of his property (A 159). She observed "one of the other guys" take Hunter's cell phone and "another guy" had the wallet in hand (A 183-184). 5 POINT I The trial court did not abuse its discretion in denying defendant's request for an adverse inference charge based on police not recording his interrogation. Whether to give the.jury an adverse inference charge on the lack of video recording of defendant's interrogation was a matter properly committed to the trial court's discretion. An adverse inference is required "where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State" (People v Handy, 20 NY3d 663, 669 [2013]). It is likewise required where an available witness with material, noncumulative information, who is under one party's control, is not called by that party (People v Gonzalez, 68 NY2d 424,427-428 [1986]). But the lack of video recording of an interrogation -especially when, as here, it results from a broad police policy rather than from an individual officer's decision- is unlike the missing-witness and failure-to-preserve-evidence situations. The logic by which the charge is required in those cases does not apply where law enforcement is not already in possession of the evidence in issue (cf. People v James, 93 NY2d 620, 644 [1999] [adverse inference charge not required where evidence that was intentionally destroyed "had not been 'gathered by the prosecution or its agent' "]). 6 Defendant was free to argue the issue to the jury in summation, but defendant was not entitled as a matter of law to an adverse inference instruction. This kind of evidentiary matter does not call for per se rules. The trial court has discretion to give an adverse inference charge where it may be necessary for the jury to evaluate the evidence in a particular case. But the trial court did not abuse that discretion in denying the request for an adverse inference charge here. Moreover, even if the charge were required, no reversal would be required because the failure to give the charge did not deprive defendant of a fair trial. A. Whether to give the jury an adverse inference charge was a matter for the trial court's discretion and the court did not abuse that discretion. Whether to give an adverse inference charge as to the lack of video recording of defendant's statements to police was a matter for the trial court's discretion. In instructing the jury, the court is required to "state the fundamental legal principles applicable to criminal cases in general" (CPL 300.10 [2]). The court "must also state the materiallegal 'principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts, but it need not marshal or refer to the evidence to any greater extent than is necessary for such explanation" (CPL 300.10 [2]). And the court need not "explain all the contentions of the parties" (People v Saunders, 64 NY2d 665, 667 [1984]). 7 Accordingly, this Court has rejected the argument that, in a case involving "a close question of identity," the trial court is required to give an expanded instruction "emphasizing the scrutiny to be given to such evidence" (People v Whalen, 59 NY2d 273, 278 [1983]). Although this Court encouraged "giving a more detailed identification charge when appropriate," such matters are left to the discretion of the trial court (id. at 279; People v Knight, 87 NY2d 873, 874 [ 1995]). Other instructions relating to the evaluation of the evidence are likewise discretionary (e.g. People v Reid, 69 NY2d 469 [1987] ["Although the court would have been justified in giving the requested charge" on coerced testimony, "its failure to do so does not constitute error"]; People v Vereen, 45 NY2d 856 [1978] [court has discretion to instruct the jury not to draw an inference from the defendant's failure to testify even when the defense does not request that charge]). Defendant, however, contends that an adverse inference charge is required as a matter of law based upon analogies to a missing wi~ness charge and to an adverse inference charge for failure to preserve evidence. But the analogies do not hold. In both cases, the charged inferences depend upon law enforcement making a choice about existing evidence. Law enforcement makes the choice that justifies the inference knowing, or with the ability to know, what the actual evidence in issue is. That makes the inference logical. 8 Whether to video record an interrogation is more complex. That does not involve presenting or preserving existing evidence, but rather whether to create the evidence (cf. People v Hayes, 17 NY3d 46, 51 [2011] ["There is a difference between preserving evidence already within the possession of the prosecution and the entirely distinct obligation of affirmatively obtaining evidence for the benefit of a criminal defendant"]). This is not a case of law enforcement making a choice to present weaker evidence when it was in their power to present stronger. The decision not to record is made without knowing whether the evidence will be weaker or stronger as a result. As a result, the logic of the adverse inference defendant seeks to draw is unlike that in the missing-witness and failure-to- preserve-evidence situations. Here the jury would have to infer that a video recording of the interrogation would have revealed new information hannful to the prosecution. Investigator Powell testified about what transpired during the interrogation, so the new information to be inferred would have to have been suppressed by Investigator Powell, whether deliberately or inadvertently. But whether Investigator Powell inadvertently omitted any information harmful to the defense is not something that can be inferred from a lack of video recording - that is an independent matter that would depend on mere speculation. The ina.dvertent act cannot be inferred 9 from a volitional act. Thus, the jury would have to infer that a video recording of the interrogation would have revealed information that Investigator Powell either deliberately omitted or lied about. As a basis for that inference, defendant asserts that Investigator Powell made a choice to take defendant to the station without recording equipment instead of to the Public Safety Building, which has such equipment (App Br, 13, 18). But Investigator Powell testified that he was required to go to the east-side office, and that only in the case of a homicide would the suspect be taken to the Public Safety Building (A 142). Surely no adverse inference can be drawn from the fact that Investigator Powell followed applicable department policy in this case. That would be absurd. Thus, it must be the policy itself from which the adverse inference flows. And indeed, defendant further argues that the adverse inference flows from the "pure choice" of an "institutional decision" to record interrogations only for "serious crimes, or homicides" (App Br, 21). Since the reasons for such a policy were not explored at trial, drawing an adverse inference from that policy decision would require blind speculation.1 1 The Justice Task Force commissioned by the Chief Judge recommended requiring video recording for "statements relating to crimes constituting A-1 non-drug felonies, and violent B felonies codified by Penal Law article 125 (homicide) or article 130 (sex offenses)" (Senate Bill S4484A-2013, http://open.nysenate.gov/legislationlbill/s4484A-20l3 [accessed Dec. 3, 20 14 )). As with the police policy here, it is unreasonable to infer that the purpose of the Task lO But even if it were possible to infer a nefarious purpose behind the . institutional policy to record interrogations only for homicides or serious felonies, under defendant's argument, the jury would further have to infer from the policy that Investigator Powell either deliberately omitted information or lied in this case. Defendant's claims notwithstanding, that inference is not natural or logical. There is no reason to suppose that Investigator Powell did any such thing, and an institutional policy cannot ground speculation about the Investigator's supposed perfidy unless the policy itself was instituted with that unjust result in mind. But there is no evidence of such police corruption. Defendant's adverse inference instruction, therefore, amounts to nothing more than a baseless invitation for the jury to speculate about institutional corruption. Because defendant's inference is not like that in the missing-witness or failure-to-preserve-evidence situations, there is also no way to limit defendant's proposed new rule to a requirement. that the court give an adverse inference charge where a suspect's interrogation has not been video recorded -sweeping an unprecedented as that requirement itself would be. For instance, there was no DNA testing done on the wallet that was taken from Hunter and that Hunter testitied he saw defendant holding. By defendant's logic~ defendant would have Force in making that proposal was to facilitate police perjury in misdemeanor and less serious felony cases. ll been entitled to an adverse inference charge instructing the jurors that they were entitled but not required to infer that, had DNA testing been done on the wallet, it would not have revealed defendant's genetic profile. The same reasoning would apply to fingerprints, photographs, and any number of other evidentiary issues ( cf. United States v Rose, l 04 F3d 1408, 1417 [1st Cir 1997] [no abuse of discretion to deny request for missing evidence instruction for failure to check for fingerprints: "this was not a case where the government failed to provide readily available evidence. The fingerprint evidence was never collected. Rose's counsel was free to argue that, in the absence of such evidence, the government had not sufficiently linked Rose to the crime"]). Indeed, by defendant's logic, a defendant should be entitled as a matter of law to an adverse inference charge any time an officer was not wearing a body camera that recorded all of his or her actions. Whether or not to charge the jury on inferences to be drawn from these kinds of evidentiary issues rests within the discretion of the trial court. Counsel was entitled to argue in summation about how the jury should interpret the evidence presented at trial- and did so here without interference. But the trial court was in the best position to determine whether, given the particular facts of the case, those arguments of counsel would call for further instruction of the jury 12 by the trial court. That is not the kind of detennination wherein the trial court is bound as a matter of law. B. Even if defendant had been entitled to an adverse inference charge as a matter of law, reversal would not be necessary. Even if defendant had been entitled to an adverse inference charge as a matter of law, reversal would not be necessary. With a claim of deficient instructions, the "critical issue on review is always" whether the deficiency "denied defendant a fair trial" (People v Sauders, 64 NY2d 665, 667 [1984] [citations omitted]; see also People v Greaves, 94 NY2d 775, 776 [1999]). Here, the absence of an adverse inference charge could not have done so. For the reasons stated above, the inference defendant sought to have the jury draw did not follow logically from the absence of a video recording. Thus, the proposed charge would not have helped defendant (see People v Blake, 24 NY3d 78 [2014]). Without a reasonable probability that the jury would have drawn the permissive inference, defendant cannot have been deprived of a fair trial by the absence of the charge. Furthermore, as to the issue of intent to steal - which is where defendant claims prejudice (App Br, 46-51)- defendant's statements were exculpatory. As to that, there was simply no adverse inference to draw. And, although defendant now complains that his sister's testimony on his behalf differed slightly from 13 defendant's statements as to the interaction with "Little C/' that is a circumstance that would not be addressed by the adverse inference. No rational juror could infer that a video recording would have shown that defendant did not in fact give those details that are in the written statement signed by him. Accordingly, the court's decision not to give an adverse inference charge in this case did not deprive defendant of a fair trial. l4 CONCLUSION The judgment of conviction should be affirmed. Dated: December 3, 2014 15 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney ~~;r=-BY:GEOF~ ~EUPE Assistant District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 'I STATEOFNEWYORK COURT OF APPEALS 1------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- EVERETT M. DURANT, Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Linda Gordon, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 3rd day of December, 2014, deponent served three (3) copies of Brief for Respondent upon Janet C. Somes, attorney for appellant in this action at The Monroe County Public Defender's Office, 10 North Fitzhugh Street, Rochester, NY 14614, by depositing a true copy ofthe same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. Sworn to before me this 3rd day of December 2014. o£rd l J::brb- LINDA GORDON STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PDF CERTIFICATION EVERETT M. DURANT, Appellant. I, GEOFFREY KAEUPER, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: December 3, 2014