The People, Respondent,v.Everett M. Durant, Appellant.BriefN.Y.October 20, 2015APL 2014-00121 Appellate Division, Fourth Department Docket No. KA 09-01799 Court of Appeals STATE OF NEW YORK _______________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- EVERETT M. DURANT, Appellant. ________________________________________________________________________ BRIEF FOR AMICUS CURIAE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK ________________________________________________________________________ HON. GERALD F. MOLLEN BROOME COUNTY DISTRICT ATTORNEY PRESIDENT, DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK PO BOX 1766 BINGHAMTON, NEW YORK 13902 Tel. (607) 778-2423 Fax. (607) 778-8870 Wendy Evans Lehmann Hannah E.C. Moore Staff Attorneys New York Prosecutors Training Institute 107 Columbia Street Albany, New York 12210 Tel. (518) 432-1100 Fax. (518) 432-1180 Of Counsel for Amicus Curiae Date Completed: August 14, 2015 ii TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES ............................................................. iv PRELIMARY STATEMENT ................................................................................... 1 QUESTION PRESENTED ........................................................................................ 4 STATEMENT OF FACTS ........................................................................................ 5 SUMMARY OF THE ARGUMENT ...................................................................... 11 ARGUMENT POINT ONE AN ADVERSE INFERENCE CHARGE SUCH AS THE ONE REQUESTED IN THE PRESENT CASE WOULD HAVE BEEN GROSSLY UNFAIR TO THE PEOPLE, AND A REQUIREMENT THAT A TRIAL COURT MUST GIVE SUCH A CHARGE ON REQUEST IS UNWARRANTED AT THIS TIME. ................................................................................................... 14 POINT TWO A LEGISLATIVELY FASHIONED RULE ESTABLISHING REQUIREMENTS FOR RECORDATION OF A DEFENDANT’S CUSTODIAL STATEMENTS AND ANY SANCTIONS FOR VIOLATION OF THOSE REQUIREMENTS, WOULD BE PREFERABLE TO A JUDICIALLY IMPOSED RULE. THE CASE AT BAR DOES NOT PROVIDE AN APPROPRIATE PLATFORM FOR JUDICIAL RULEMAKING, AND LAW ENFORCEMENT IS MOVING FORWARD IN GOOD FAITH TOWARD ENSURING THAT ALL NEW YORK JURISDICTIONS WILL SOON HAVE THE CAPABILITY TO RECORD INTERROGATIONS IN ACCORDANCE WITH WHATEVER LEGISLATION IS PASSED. ........................................................................ 23 iii CONCLUSION ....................................................................................................... 33 EXHIBIT .................................................................................................................. 34 iv TABLE OF CASES AND AUTHORITIES CASES Armory v Delamirie, 1 Strange 505 (1722) ............................................................. 19 Commonwealth v DiGiambattista, 442 Mass 423 (2004) ................................. 23, 31 Laffin v Ryan, 4 AD2d 21 (1957) ............................................................................. 18 People v Baranov, 121 AD3d 706 (2d Dept 2013) ................................................. 16 People v Carr, 14 NY3d 808 (2010) ....................................................................... 22 People v Cefaro, 23 NY2d 283 (1968) .................................................................... 16 People v Durant, 112 AD3d 1366 (2013) .................................................................. 4 People v Falkenstein, 288 AD2d 922 (4th Dept 2011) ........................................... 21 People v Gonzalez, 68 NY2d 424 (1986) .......................................................... 18, 22 People v Handy, 20 NY3d 663 (2013) .................................................................... 19 People v Kunz, 31 AD3d 1191 (4th Dept 2006) ...................................................... 21 People v Oglesby, 15 AD3d 888 (4th Dept 2005) ................................................... 21 People v Williams, 39 AD3d 1200 (4th Dept 2007) ................................................ 21 State v Barnett, 789 A2d 629 (NH 2001) ................................................................ 31 State v Hajitic, 724 NW2d 449 (Iowa 2006) ........................................................... 31 State v Scales, 518 NW2d 587 (Minn 1994) ........................................................... 31 Stephen v State, 711 P2d 1156 (Alaska 1985) ......................................................... 30 v Statutes CPL § 710.70 ........................................................................................................... 16 Penal Law § 125 ................................................................................................. 28, 28 Penal Law § 130 ................................................................................................. 26, 28 Penal Law § 160.10 .............................................................................................. 1, 26 1 PRELIMINARY STATEMENT The District Attorneys Association of the State of New York submits this brief as amicus curiae. Defendant was convicted on May 6, 2009, after a jury trial, 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 determinate term of incarceration of five years, with five years of post-release supervision. The Appellate Division, Fourth Department, unanimously affirmed the judgment of conviction (People v Durant, 112 AD3d 1366 [2013]). Leave to appeal to this Court was granted by the Honorable Eugene R. Pigott, Associate Judge of the Court of Appeals. The District Attorneys Association of the State of New York (DAASNY) is filing this brief in support of Respondent, the People of the State of New York. DAASNY represents the 62 elected District Attorneys of the State of New York, the Special Narcotics Prosecutor for the City of New York, and their nearly 2900 assistants. One purpose of this organization is to coordinate the exchange of information and views among the various District Attorneys’ offices throughout the State so as to improve the effectiveness and efficiency of their respective offices. In addition, the Association seeks to advance the interests of its members by filing amicus briefs in various courts so as to make those courts aware of the 2 concerns and views of its membership in cases whose resolution is likely to have an impact on the prosecutorial function of the state’s District Attorneys. This is such a case. The defense seeks to have this Court impose a rule requiring trial courts, when the People have introduced a statement made by defendant to police, which statement was not recorded, to read an adverse inference charge permitting the jury to find insufficient proof of voluntariness based solely on the failure to record. DAASNY believes that the parameters of when and how statements should be recorded and what consequences are appropriate when a statement is not recorded, are determinations of public policy best left to the Legislature. DAASNY, individual district attorneys, and police agencies across the state have worked hard to encourage recording of interrogations, and significant results have been achieved. Pilot projects and best practices protocols have helped all jurisdictions develop procedures that balance the challenges and benefits of recording to promote the integrity of the criminal justice system. This is a complicated and expensive endeavor. Today, about 400 police agencies in all of New York’s 62 counties record interrogations. How and when those recordings are utilized in a criminal prosecution and what consequences are appropriate when there is no recording, are issues that present another set of challenges. New York jurisprudence does not provide any 3 basis for tying a failure to record to the exclusionary rule, and even a cautionary instruction should be limited to situations in which there is a showing of prejudice to the defendant by the alleged police misconduct. DAASNY believes that the complex details of these policy determinations are best left to the state legislature. 4 QUESTION PRESENTED In the absence of any rule or statute requiring recording of police interrogations, is a defendant entitled to an instruction inviting the jury to draw an adverse inference from the failure to record? Answer of the courts below: The trial court refused to give the charge requested by the defense. On appeal to the Appellate Division, Fourth Department, that court 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.” Durant, 112 AD3d 1366 at 1367. 5 STATEMENT OF FACTS The Indictment By indictment number 16902-08, a Monroe County Grand Jury charged defendant and codefendant Natavious Peterson of Robbery in the Second Degree (Penal Law § 160.10[1]). Specifically, the indictment charged that, on or about November 28, 2008, the defendants forcibly stole money "and/or a cell phone and/or a wallet from Emmett Hunter, while aided by another person actually present" (A. 12). The Trial The People's Case At approximately 10:00 p.m. on November 28, 2008, Mr. Hunter was walking home from a friend's house in the City of Rochester, when he observed a group of five or six teenagers standing near an intersection. "[S]omething didn't feel right" to Mr. Hunter, who had been robbed before, so he pulled his phone out (A. 55-59, 82). As he walked through the group, defendant, wearing an all red sweat suit grabbed him from behind and put him in a "choke hold" (A. 60-61).1 The next thing Mr. Hunter remembered was calling 911 and saying that he had just been robbed (A. 59). Codefendant Peterson said "shoot 'em, shoot 'em, 1 Mr. Hunter, identified defendant in a showup as the man wearing an all red sweat suit. He also identified him in court (A. 65, 77, 107-108, 146). 6 shoot 'em," and Mr. Hunter told the 911 operator, "[h]e got a gun, he got a gun." (A. 82, 96-97).2 Defendant was holding Mr. Hunter's wallet. Someone in the group said "he is really calling the police," and the group "came back at [him] again" and "took the phone." Defendant pulled Mr. Hunter's hood over his head and the group kept "kicking and punching," "beating up," Mr. Hunter (A. 62-67, 100). In an effort to defend himself, Mr. Hunter held on to defendant, and dragged him into the street, "trying to make it" to the nearby fire station, while the group continued to "beat[], punch[] and kick[]" him. Mr. Hunter made it to the fire station, where he "pushed the emergency button" (A. 66, 68-72, 86-87). Mr. Hunter's wallet, social security card, and other items from his wallet were recovered from behind the nearby store, but his money and phone were never found (A. 61, 72-75). Shortly after midnight on November 29th, Investigator Powell met with defendant in an interview room in the east side office of the Rochester Police Department. Before the interview, defendant, who was handcuffed, was asked if he needed to use the bathroom, or wanted anything to eat or drink. He was also offered a cigarette, which he accepted (A. 117-119, 141). "Five to ten minutes" 2 Codefendant Natavious Peterson was identified in a showup (A. 77, 83, 109, 111). 7 after entering the room, after chatting about defendant's children for a bit, Investigator Powell read defendant his Miranda warnings, using a notification and waiver card. Defendant indicated that he understood the warnings and agreed to talk (A. 120-122). Investigator Powell then asked defendant if he knew what he was there for. Defendant responded that he was "walking with his sister and he saw a fight on the corner of 1226 North Clinton and he became involved to try to break up the fight and punched the alleged victim." No promises or threats were made (A. 123-124). After the initial statement, Investigator Powell told defendant that "it was time to tell the truth and to man up." Defendant said, "okay," and told Investigator Powell what happened. The whole interview lasted about 40 minutes. Investigator Powell wrote up the statement and gave defendant the opportunity to review it and make any changes. Defendant found one "mistake." Investigator Powell fixed it and defendant initialed the statement. Once defendant was satisfied with the statement, both defendant and Investigator Powell signed it. The statement read: My name is Everett Durant. I am 22 years old. I live at . . . . I am currently not working at this time. I am the father of two daughters . . . . On November 28th, 2008, about 5:45 p.m. I left my grandma's house . . . . I walked up to the store . . . . I saw a black dude from the neighborhood named Little C and his brothers. We saw this dude on the cell phone walking northbound on North Clinton Avenue. I saw Little C and his brothers begin to crowd the black dude on the cell phone. Little C and his brothers jumped this guy. I punched this guy with the cell phone two or three times 8 and I kicked him once. This guy on the cell phone grabbed my right wrist. I pulled this guy's hand from my wrist. I ran towards Coleman Avenue. I did not take any property from this man. I was stopped by the police at the corner of Coleman Avenue and Bronson Street and brought back to North Clinton and Coleman Avenue where I was identified by the black male who was on the cell phone. This is my statement and it is the truth. Defendant never asked for an attorney, or asked that Investigator Powell stop speaking with him (A. 124-128, 143). The interview was not recorded. Investigator Powell did not have access to video or audio tape machines. The west side location had recording equipment, but not the east side location. At that time, "[i]t was common practice when a crime occurs on the east side to go to the east side office. If it is a homicide you t[ook] the person back to the Public Safety Building" on the west side (A. 133-134, 142). The Defense Case Jasmine Durant, defendant's sister, testified that, on the night of November 28th, at about 10 p.m., she and defendant were leaving their grandma's house to walk home. When they reached the intersection of North Clinton and Coleman, she and defendant stopped to talk to defendant's friend ("Little C"). About five minutes later, she saw Mr. Hunter (whom she did not know) run by, being chased by "four to five" "guys" with "stuff in their hands." One of the guys Ms. Durant knew as an acquaintance of defendant's (A. 160-162, 164-170, 182). The "guys" 9 then "started an altercation with [Mr. Hunter]" -- "hitting . . . kicking . . . punching," a few feet from where Ms. Durant was standing (A. 162). They all "crowd[ed]" Mr. Hunter and kicked and hit him for about five minutes. Ms. Durant saw defendant hit Mr. Hunter, but "didn't see him take anything." Defendant and Mr. Hunter "exchanged words and then [defendant] hit him a couple times and kicked him once and then after that [they] left." Ms. Durant saw "one of the other guys" take Mr. Hunter's phone. Another guy "came up with the wallet in his hands." Defendant was present when the wallet and phone were taken (A. 175-181, 183-186). The Adverse Inference Request During the charge conference in chambers, defense asked the court to "charge the jury about the People's failure to record a custodial statement," and filed a written request (A. 191, 289-90). The proposed charge stated, in part: Among the factors you may consider in deciding what, if any, weight should be accorded the alleged statement attributed to the defendant, is the failure of law enforcement officials to make any electronic recording of the interrogation or statement. . . . Where there is failure to electronically record an interrogation and statement, you have not been provided with a complete picture of all the facts surrounding the defendant's interrogation and the precise details of any statement. After giving examples, the charge instructs, " [t]he absence of an electronic recording permits, but does not compel, you to conclude that the prosecution has failed to prove that a statement was either actually or voluntarily made, or, if made, 10 that it was accurately reported by the State's witnesses." The charge cautioned that when weighing the voluntariness of a statement, to "weigh such evidence with caution based on the risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by defendant." Then, [i]f, after consideration of all of the evidence, you determine that the prosecution has failed to prove to your satisfaction, beyond a reasonable doubt, that the statement attributed to the defendant was actually made, or that it was a voluntary statement . . . , then you should disregard it completely. . . . if you find that the statement was actually and voluntarily made, and also accurately reported, then you must determine what weight, if any, to give it and what inferences may reasonably be drawn from it (A. 289-90). The court denied the request (A. 191). During summation, defense argued that "we are never going to know what happened in that small room during the discussion with Investigator Powell, . . . because they won't record these interviews. They do not give us any record except Investigator Powell's recollection of what occurred . . . ." (A. 204-05). 11 SUMMARY OF THE ARGUMENT The issue presented is whether a trial court should be required, at a defendant’s request, to give the jury an adverse inference charge when police have not recorded their interrogation of defendant. Amicus believes that such a requirement is not warranted and would be unfair to the People. In this robbery second degree trial, the court below denied defendant’s request for a permissive adverse inference charge. The case was tried in 2008, when many, if not most, jurisdictions did not routinely record interrogations. The minimal questioning at trial concerning the lack of recording revealed that the officer followed the police policy then in effect. And, the general questioning concerning the interrogation gave no indication whatsoever that defendant’s statement was not voluntarily, knowingly, and intelligently made – although he admitted being present at the incident, and kicking the victim, he denied taking any property or being part of any effort to do so. Notably, the defense did not request the charge until after the close of proof, thus precluding any further development of a record; there apparently was no request for the traditional voluntariness charge; and defense counsel in summation alluded to the lack of recording but did not allege any violation of defendant’s rights in regard to the interview. Indeed, counsel pointed to the statement’s exculpatory claim in support of his argument that there was reasonable doubt as to defendant’s participation in the 12 robbery. Furthermore, the charge requested gave no guidance to the jury on how they should consider the totality of the circumstances in determining voluntariness, if such determination would even have been properly before them in light of the total lack of any evidence that the statement was not voluntarily given. This case also does not provide an appropriate vehicle for the broad kind of judicial rule-making that defendant now requests of this court. There is no basis in New York jurisprudence for an adverse inference charge in the absence of any evidence that police violated any constitutional or statutory right of defendant (indeed there is no such right in New York), acted in bad faith, destroyed or lost any material evidence, or operated outside the norms of responsible police practice. Indeed, the claim that an inference can be made that because of the failure to record, the prosecution did not prove that the statement was actually or voluntarily made, or if made was not accurately reported, lacks any logical or legal basis. This interrogation occurred more than six years ago, when the practices around the recording of interviews and statements across New York State were vastly different from those of today. Since that time, law enforcement has invested considerable resources of money and training to promote recording policies that reflect best practice as currently defined. To impose a retrospective rule punishing law enforcement for not doing something that it was not legally required or logically expected to do, is entirely inappropriate. 13 Even a prospective rule requiring an adverse inference charge is not warranted at this time. As has become abundantly clear in the years that courts and legislatures have wrestled with appropriate policies and sanctions concerning recording of police interviews, the legal and practical parameters of such rules require careful balancing. Law enforcement in New York State has worked cooperatively and energetically to establish policies and fund equipment and training, with the result that today, the vast majority of New York jurisdictions follow video recording policies in line with the recommendations of the New York State Judicial Task Force, the New York State Division of Criminal Justice Services’ Model Policy, and the District Attorneys Association’s Guidelines for Recording. Defense and prosecution have worked to fashion legislative guidelines, and that effort is close to coming to fruition. Judicial restraint would suggest that those paths should be allowed to play out before a court rule such as that proposed by the defense in this case, or any other court mandate, is imposed. 14 ARGUMENT POINT I AN ADVERSE INFERENCE CHARGE SUCH AS THE ONE REQUESTED IN THE PRESENT CASE WOULD HAVE BEEN GROSSLY UNFAIR TO THE PEOPLE, AND A REQUIREMENT THAT A TRIAL COURT MUST GIVE SUCH A CHARGE ON REQUEST IS UNWARRANTED AT THIS TIME. The trial court properly refused to charge the jury that, based on the lack of a video recording, they could conclude that the People had failed to prove that defendant’s statement to police was actually given, voluntarily made, or accurately reported by the officer who testified. The requested charge was not only woefully biased against the People, but also was untimely requested; was sought in a case in which no evidence, or even claim, of involuntariness had been put forward to the jury; and was in the context of a case tried in 2008, when few New York jurisdictions made recordings of police interrogations and no appellate court had articulated a requirement or even a preference for such practice. Nevertheless, defendant argues that the “failure” to record is analogous to the failure to produce a witness who would be expected to testify favorably for the People and thus warrants an adverse inference charge similar to the missing witness charge. The analogy is legally and logically flawed, and the trial court properly refused to give 15 the charge. Indeed this case highlights the problems inherent in imposing a mandatory adverse inference charge at a defendant’s request in these cases. Cautionary instructions are appropriate in a number of situations in which the jury needs clarification about how to utilize certain evidence (e.g. Molineux), how to understand certain courtroom procedures (e.g. the attorneys’ statements are not evidence), or to understand moderate reprimands to the attorneys, witnesses, or defendant. Such cautionary instructions are quite different, however, from the kind of adverse inference instruction that defendant sought in this case. The charge requested by defendant focused solely on the failure to record. While it stated that this “failure” was “[a]mong the factors” the jury could consider in deciding what weight if any to give the “alleged statement,” there was no mention of what the other factors to be considered might be (A. 289). Indeed the record provides no indication that defendant requested the traditional voluntariness charge to be read in conjunction with the failure to record charge. There was, therefore, no mention of factors such as whether defendant was given Miranda rights, whether he exercised his right to stop the questioning, whether he indicated he wanted counsel, what his mental condition was, whether there were any promises or threats made, etc. Although New York law is clear that voluntariness is determined by a review of the totality of the circumstances, the requested charge gave no guidance whatsoever that would have informed the jury of that framework for their analysis. 16 The requested charge highlighted all the purported shortcomings of the proof provided, without any reference to other aspects of the totality of the circumstances to be considered. Such a one-sided charge would not have promoted an accurate understanding of the jury’s role in determining whether the defendant’s statement was voluntarily made. Indeed, under the facts of the present case, there was no basis for the court to submit the issue of whether defendant’s statement was voluntary under any standard. CPL § 710.70(3) provides that where a defendant “adduce[s] trial evidence and otherwise contend[s] that the statement was involuntarily made . . . the court must submit such issue to the jury under instruction to disregard such evidence upon a finding that the statement was involuntarily made.” Case law further provides that the court is not required to read a voluntariness charge unless the defendant requests such a charge and “evidence sufficient to raise a factual dispute has been adduced either by direct or cross-examination” concerning the voluntariness. People v Baranov, 121 AD3d 706, 707 (2d Dept 2013) quoting People v Cefaro, 23 NY2d 283, 288-289 (1968); Here there was no such evidence adduced. Defendant in essence would like the mere lack of a recording to provide sufficient evidence of involuntariness such that a jury may consider the issue. Such a result not only contradicts the language of CPL § 710.70(3), but also is not grounded in logic or law. As of the time of the trial in the present case, no New 17 York appellate court had expressed a preference, let alone a requirement, that recording was to be so linked to a showing of voluntariness that a jury could logically infer that, in the absence of a recording, proof of voluntariness was insufficient. Inasmuch as any New York jurisprudential foundation for such an inference is totally nonexistent, the conclusion defendant seeks constitutes a logical fallacy. There simply is no logical nexus between a lack of recording and an inference that a statement has been involuntarily given. To be sure, by 2008 several states had either by statute or by judicial rule promulgated some requirements concerning the recordation of defendants’ statements. However, neither New York courts nor the Legislature had done so. At that time, only a handful of New York police agencies recorded all or part of police custodial interrogations, and the history of New York jurisprudence regarding the voluntariness of statements provided in those circumstances gives no indication that recording would be considered a prerequisite to a sufficient showing of voluntariness. Additionally, the "Introduction" to the Criminal Jury Instruction (CJI) for "Admission/Confession" reads, "[o]ur law does not require that a statement by a defendant be in any particular form. It may be oral, or written, or electronically recorded." Thus, not only did the trial court not abuse its discretion in denying the request, it was also adhering to the CJI charge. 18 There simply was no expectation that such recordings would be a necessary or even a logically anticipated component of the People’s proof of voluntariness. In such circumstances, an adverse inference charge based on only the lack of recording would be unwarranted. Adverse inference charges are given as a sanction – thus implying that either a party has done something wrong (as in the loss, destruction, or concealment of evidence) or, in the context of a missing witness charge, that the party has failed to produce “evidence that would naturally have been produced by an honest and therefore fearless claimant.” 2 Wigmore, Evidence § 285, at 192 [Chadbourn rev ed 1979] quoted in Laffin v Ryan, 4 AD2d 21, 25 (1957), quoted in People v Gonzalez, 68 NY2d 424, 427 (1986). In the context of the present case, the People clearly did nothing wrong – there was no requirement that the interview be recorded. Similarly, it cannot be said that recording, especially in a case of a low level felony, would have been expected of “an honest and therefore fearless claimant,” so as to warrant the sanction of an adverse inference charge. In his effort to analogize the present situation to the missing witness context, defendant continually confuses the issue by using the term "produce" to refer to both the ability to "produce" (create) a recording, and to "produce" (bring before the court) evidence (def brief, pp. 2, 8-9, 11-13, 15-16, 2, 23-28, 30-31, 38-39, 41, 43, 45). In all the adverse inference cases relied upon by defendant, "produce" is 19 used in the second sense, imposing a burden on the People to make known the existence of particular evidence. Defendant's examination of the origins of the adverse inference exemplifies this distinction. Defendant attributes the rule to a 1722 case (Armory v Delamirie, 1 Strange 505) involving a chimney sweep who discovered a jeweled ring and took it to defendant, a jeweler, to ascertain its value. When defendant returned the ring, the stones were missing. Defendant, however, refused to produce the stones; thus the judge told the jury it should presume the stones were of finest quality. In that instance, unlike here, defendant had actually possessed the evidence in question (the stones) (def brief. p. 22). Likewise, in People v Handy (20 NY3d 663, 669 [2013]), relied upon by the defense, video images of the altercation between defendant and the victim were destroyed before trial. This Court held that "a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State." Again, in that instance, the evidence actually existed and was destroyed. There has never been, nor should this Court now impose, an obligation to create evidence (especially evidence that to date has not been required), or risk an adverse inference, which is what defendant is in fact requesting. 20 Defendant attempts to support his argument by claiming his position is "not that the prosecution was required to obtain or acquire evidence it did not have," but, rather, that "the police created the evidence by conducting the interrogation" and "chose not to memorialize that evidence in an objective and indisputable way" (def brief, p. 39). That characterization, however, is inaccurate. Unlike the defendant in the case of the missing jewels, the absence of a recording in situations such as presented in this case does not imply that anything unsavory was occurring. Historically, police departments have conducted and memorialized interviews with suspects without recording, and the fact that a recording was not made does not imply that the police, or the People, were trying to hide something. In fact, before any interview begins, the police cannot know whether it will produce helpful, harmful or no evidence at all. Defendant's claim that the People put before the jury an "unreviewable version" (def brief, p. 21) of what happened is also incorrect. Defense counsel vigorously cross-examined Officer Powell about the interview, and the absence of a recording, and defense counsel made further argument in closing. Defendant was afforded a full opportunity to place the issue before the jury. In this case, the police officer who conducted the interview explained that he followed the guidelines of the Rochester Police Department which instructed to only take a suspect to the west side police station for recording in homicide cases. 21 It strains credulity to think that an officer who followed protocol, memorialized the defendant's statement in writing, gave defendant the opportunity to review and correct the statement, and then had defendant sign the statement, could now be faulted for such behavior. That, however, is just what a retrospective ruling that an adverse inference should have been given would do. Not only was the officer's conduct in keeping with the guidelines at that time, the trial court's denial of defendant's request was also in accordance with all applicable law at the time. The Fourth Department had repeatedly held that there was "no Federal or State due process requirement that interrogations and confessions be electronically recorded." See People v Falkenstein, 288 AD2d 922 (4th Dept 2001); People v Oglesby, 15 AD3d 888(4th Dept 2005)(same); People v Kunz, 31 AD3d 1191 (4th Dept 2006)(same); People v Williams, 39 AD3d 1200 (4th Dept 2007)(same). Similarly, there was no statute requiring recording or any adverse inference in its absence. If there was no requirement to record and no expectation that recording was to be a requirement of proving voluntariness, then it follows that there could not be an adverse inference imposed for failing to do so. Clearly, this case does not provide an appropriate platform for imposition of a judicial decree requiring an adverse inference charge in cases in which police, in the absence of statutory requirements, followed policies then in place, and did not record their questioning of defendants. It should also be noted that the charge was 22 not requested until both sides had rested, so that the People had no occasion to develop a record regarding the policy then in place concerning recordation of police interviews. The record is clear that the officer followed department policy, but the policy itself could have been put in better context had the People known an adverse inference charge would be requested. As this Court has stated, a party seeking a missing witness instruction must make the request “as soon as practicable.” Gonzalez, 68 NY2d 424 at 428, quoted in People v Carr, 14 NY3d 808 (2010). Here, as in Carr, the defendant knew at the outset of trial that the People had no recording of the interview and could have made the request at a time when a further explanation could have been made before the jury. Indeed, defendant's suppression motion included an argument that his statement should be suppressed because it was not recorded; thus he was well aware that the statement was not recorded. In this case, even a cautionary instruction was not warranted since voluntariness was not a live issue before the jury, but certainly an adverse inference instruction, especially one as one-sided as that requested here, would have been totally inappropriate.3 3 In Massachusetts, for example, the Supreme Judicial Court ordered that when a statement that is the product of an unrecorded interrogation is admitted, the defendant is entitled (on request) to a jury instruction “that the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording…they should weigh evidence of the defendant’s alleged statement with great caution and care.” However, only where voluntariness is a live issue and the (cont) 23 POINT II A LEGISLATIVELY FASHIONED RULE ESTABLISHING REQUIREMENTS FOR RECORDATION OF A DEFENDANT’S CUSTODIAL STATEMENTS AND ANY SANCTIONS FOR VIOLATION OF THOSE REQUIREMENTS, WOULD BE PREFERABLE TO A JUDICIALLY IMPOSED RULE. THE CASE AT BAR DOES NOT PROVIDE AN APPROPRIATE PLATFORM FOR JUDICIAL RULEMAKING, AND LAW ENFORCEMENT IS MOVING FORWARD IN GOOD FAITH TOWARD ENSURING THAT ALL NEW YORK JURISDICTIONS WILL SOON HAVE THE CAPABILITY TO RECORD INTERROGATIONS IN ACCORDANCE WITH WHATEVER LEGISLATION IS PASSED. As it is clear that the adverse inference charge requested by defendant was properly denied based on the flawed charge itself and on the circumstances of the present case, defendant’s argument must really be seen as an effort to procure a judicial pronouncement requiring such a charge in future cases. Amicus does not contest that recording of custodial interrogations is to be encouraged as a beneficial tool in providing the most accurate and complete memorialization of the interview and of whatever statement a defendant may make. In fact, the District Attorneys Association and law enforcement have been working diligently to provide the resources and guidelines necessary to make recording an integral part of the humane practice instruction is given, should the jury also be advised that the absence of a recording permits them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt. Commonwealth v DiGiambattista, 442 Mass 423, 447 - 448 (2004). 24 interrogation process when appropriate. Although law enforcement’s efforts to make recording on a voluntary basis a reality have resulted in huge strides forward, a fair legislative solution is not opposed, and that process is close to coming to fruition. Judicial restraint should be exercised to allow those paths to play out before a court rule, or any other court mandate, is imposed. New York Review A review of the history of recording interrogations in New York and nationally is instructive. Although some counties, such as Broome, which had been recording interrogations for major felonies since the early 1990s,4 already had recording practices in place, in 2006, New York State awarded the first grants to allow local law enforcement to purchase and install equipment to record interrogations. 5 On May 1, 2009, Chief Judge Lippman convened the New York State Justice Task Force (the “Task Force”), with the mission to “eradicate the systemic and individual harms caused by wrongful convictions and to promote public safety by examining the causes of wrongful convictions and recommending 4 To read more about how the Broome County District Attorney began to record interrogations in 1993 see "Police and District Attorneys Endorse Video Recording of Interrogations" (NYLJ 8/8/2011), by Kristine Hamann, then executive assistant district attorney at the Office of the Special Narcotics Prosecutor and chair of DAASNY's Best Practices Committee, attached to this brief as Exhibit A. Indeed, as Hamann’s article notes, Monroe County was also an early advocate for video recording of interrogations. 5 http://www.criminaljustice.ny.gov/pio/press_releases/2013-11-18_pressrelease.html, accessed 7/13/15. 25 reforms to safeguard against any such convictions in the future.” Members of the Task Force included “prosecutors, defense attorneys, judges, police chiefs, legal scholars, legislative representatives, executive branch officials, forensic experts and victims’ advocates.” In 2010, DAASNY published "New York State Guidelines for Recording Custodial Interrogations of Suspects," which "establish[ed] broad guidelines for the electronic recording of suspects' statements in custodial interrogations and the associated use, management, storage and retrieval of such recordings."6 At that time, recordings were "being conducted in over 30 counties in New York State, with more counties soon to join in." The guidelines recognized that law enforcement agencies were "embracing" recording "[o]n a voluntary basis, where resources permit[ted]."7 Then, in January of 2012, the Task Force, then co-chaired by Westchester County District Attorney Janet DiFiore, and the late Honorable Theodore T. Jones, Associate Judge of this Court, published “Recommendations Regarding Electronic Recording of Custodial Interrogations.” 6 The endorsed protocols, "spearheaded" by the Best Practices Committee, were based on a review of video recording pilot projects "in conjunction with the New York City Police Department (NYPD), the New York State Police, the state Chiefs of Police Association, and the state Sheriff's Association." See Exhibit A, "Police and District Attorneys Endorse Video Recording of Interrogations." 7 http://www.daasny.com/wp-content/uploads/2014/08/Video-Recording-Interrogation- Procedures-Custodial-FINAL-12-8-10.pdf, accessed 7/13/15. 26 Notably, “in light of the consensus about the benefit of recording,” the “fundamental issue was whether to recommend mandatory recording of interrogations, continue to allow it to be voluntary or give law enforcement additional time to continue implementing it on a voluntary basis before revisiting the issue,” given the “laudable efforts” by law enforcement. Ultimately, the Task Force “chose to recommend legislation requiring recording in certain situations, focusing on serious crimes in which lengthy interrogations which could result in false confessions were more likely to occur.” To that end, the Task Force recommended recording all “custodial interrogations of suspects of qualifying offenses occurring at a place of detention.” Qualifying offenses were defined as all A-1 non-drug felonies, all violent B felonies codified in Section 125 of the Penal Law (homicide and related offenses), and all violent B felonies codified in Section 130 of the Penal Law (sex offenses).8 The Task Force proposed that there be exceptions to the recording requirement when the People could show “good cause,” including, but not limited to, issues like equipment malfunction, unavailability of equipment because it is already in use, jeopardizing safety, inadvertent errors, and not being aware that 8 It should be noted that defendant's interrogation in this case would not have been required to be recorded by the Task Force guidelines or the Model Policy since defendant was charged with Robbery in the Second Degree (Penal Law § 160.10[1]), a class C felony, which does not fall into the category of any of the proposed specified offenses. 27 qualifying offense has occurred. Finally, the Task Force recommended that a hearing court consider the failure to record as a factor in determining admissibility; and that, in the case of a trial, a “cautionary” jury instruction be given at defendant’s request if the unrecorded statement is admitted.9 By the fall of 2013, New York State had invested more than $3 million dollars in the recording project, and, with the addition of funds that fall, all 62 counties in New York had agencies that record interrogations via video, "bringing the number of agencies that will use the technology statewide to approximately 400." Grants were allocated to the District Attorneys' Offices, who then appropriated them to law enforcement agencies in their county. In addition to appropriating the funds, the DA’s offices “partner with agencies in their counties to develop video recording protocols that detail, among other items, the types of crimes with which an individual is charged that would require the interview to be recorded” (see fn 6, supra, November 18, 2013 press release). In December of 2013, the New York State Division of Criminal Justice Services (DCJS), published “The Recording of Custodial Interrogations Model 9 http://www.nyjusticetaskforce.com/ElectronicRecordingOfCustodialInterrogations.pdf, accessed 7/13/15. 28 Policy." That policy, approved by The Municipal Police Training Council10, was based on recommendations from DAASNY, the New York State Association of Chiefs of Police, and the Justice Task Force. The policy is instructive: It is expected that electronically recording custodial suspect interrogations will enhance the investigative process and assist in the investigation and prosecution of criminal cases. Critical evidence can be captured through the recording of interrogations. The recording will also preserve information needed regarding a person's right to counsel and the right against self-incrimination and it can be used to resolve a person's claim of innocence. Similarly, the electronic recording of custodial interrogations will assist in defending against civil litigation and allegations of officer misconduct.11 Under the Model Policy, "whenever possible and practicable," custodial interrogations would be recorded when it is "reasonably suspected" that the suspect committed an A-I non-drug felony or a Penal Law Section 125 or 130 B violent felony. The Model Policy explains some of the "practical reasons" that a recording may not be recorded, and delineates the steps to take prior to recording, during recording, and after the interview. A New York State legislative definition of when recording should be done and what sanctions are available for violations of the requirements has also been 10 The Municipal Police Training Council is an independent body whose members are appointed by the Governor and to which DCJS provides staff. http://www.criminaljustice.ny.gov/ops/training/bcpo/, accessed 7/13/15. 11 http://www.nychiefs.org/ModelPolicies/MPTC_Recording_Model_Policy_Dec_2013.pdf, accessed 7/13/15. 29 underway. The most recently proposed bill, S5875A/A8157A-2015, was submitted following an agreement by the New York State Bar Association, the District Attorneys Association of the State of New York, and the Innocence Project to require the recording of custodial interrogations in certain serious crimes.12 The bill effectively mirrored the recommendations of the Task Force, i.e., requiring recording only for qualified offenses; allowing a number of “good cause” exceptions; permitting the court to consider a failure to record as a factor in determining whether the statement shall be admissible; and providing for a jury instruction at the defendant’s request if the People fail to record a covered statement and “have not shown good cause for the non-recording.” While there is near universal agreement that recording is beneficial, there have been hurdles in establishing the parameters of any required recordation, exceptions to the requirement, and appropriate sanctions for failure to follow the requirement. The logistical concerns too are significant -- how to implement and fund recording. It takes time and money to create the spaces where recording would occur; the technology necessary to record is expensive; and requisite 12 http://open.nysenate.gov/legislation/bill/A8157A-2015, accessed 7/13/15. That bill also related to another of the Task Force recommendations regarding the admission into evidence of pretrial identifications of the defendant. See also the NYSBA News Release issued by the three organizations in conjunction with the submission of the bill. http://www.nysba.org/2015_Statement_and_Integrity_Act/, accessed 7/13/2015. 30 training requires both money and time. Indeed, as recording has become more commonplace, many issues have become more complicated and costs have been higher than originally assumed. Issues surrounding angle of cameras, translation of foreign language interviews, sophistication of equipment, transcription, and storage of recordings continue to present concerns to both the prosecution and defense. National Review Recording interrogations is also on the rise nation-wide. That said, the majority of states still have no recording requirement, and most states that have addressed the issue have done so prospectively via legislation, and not through judicial intervention. The following states have enacted legislation requiring that interrogations be recorded in certain instances: Illinois (2003), Maine (2004, effective 2005), Wisconsin (2005), Washington D.C. (2005), New Mexico (2006), North Carolina (2007, expanded 2011), Maryland (2008), Nebraska (2008), Missouri (2009), Montana (2009), Oregon (2010), Connecticut (2011, effective 2014), Michigan (2012), Vermont (2014, effective 2015). Ohio (2010), has a statute that authorizes, but does not require, recording. In California, a 2013 statute requires that custodial interviews of juvenile homicide suspects are recorded. Court decisions in two states, Alaska (1985) and Minnesota (1994), require recording for all crimes when "feasible." See Stephen v State, 711 P2d 1156 31 (Alaska 1985); see also State v Scales, 518 NW2d 587 (Minn 1994). In New Hampshire, pursuant to State v Barnett, 789 A2d 629 (NH 2001), there is no requirement that statements be recorded, however, if a recording is made of part, but not all, of a custodial statement, the partial statement is not admissible, but oral testimony concerning the whole or part is admissible. In Iowa (State v Hajtic, 724 NW2d 449 [Iowa 2006]), recording is encouraged, but not required. In Massachusetts, pursuant to Commonwealth v DiGiambattista, 813 NE2d 516 (Mass 2004), recording is not required, but the defendant is entitled to a jury instruction if the interrogation is not recorded. Court rules in New Jersey (2005) and Indiana (2009, effective 2011) require recording in certain instances. Arkansas (2012) also has a court rule that custodial statements be recorded "whenever practical." All told, 24 states have legislative or judicial guidelines that mandate or encourage recording.13 Certainly, interrogations are being recorded with increasing frequency across the United States, and this trend is consistent with what is happening within New York. Importantly, however, the implementation and growth of recording interrogations 13 For a full review of each state's recording requirements, see the Custodial Interrogation Recording Compendium By State. http://www.nacdl.org/usmap/crim/30262/48121/d/, accessed 7/13/15. 32 in the State has happened thus far without judicial or legislative intervention.14 That trend should be allowed to continue. 14 It should be noted that this Court has no statutorily articulated supervisory authority to judicially legislate such as does the Massachusetts supreme judicial court (GL ch. 211 Sec 3); nor does the New York Constitution provide such authority (NY Const Art 6, Sec 3). Whatever may be the boundaries of this Court’s inherent power to go beyond the conventional parameters of judicial review (see Gershman, Supervisory Power of the New York Courts, 14 Pace L Rev 41, 62-100 [1994]), as discussed above, this case is not the appropriate vehicle for judicial rulemaking, there having been no misconduct, no violation of law, and no governmental action undermining a right sense of justice. 33 CONCLUSION It is clear that there is an increasing nationwide consensus that recording of police custodial interviews is beneficial to both the defense and the prosecution and is an aid to the administration of justice. Nevertheless, there continue to be issues of how this recognition can be most appropriately implemented. There are legitimate concerns and constraints that must be accommodated in any prospective rule concerning recordation. Such issues are best worked out in the give-and-take of legislative negotiations, rather than promulgated by judicial decree in the context of a case such as the one now before this Court. Both law enforcement and defense are working to achieve fair and just rules and sanctions, and judicial restraint would suggest that those paths should be allowed to play out before a court rule such as that proposed by the defense in this case, or any other court mandate, is imposed. RESPECTFULLY SUBMITTED, HON. GERALD F. MOLLEN BROOME COUNTY DISTRICT ATTORNEY Dated: August 14, 2015 PRESIDENT, DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK PO BOX 1766 By: _______________________ BINGHAMTON, NEW YORK 13902 HANNAH E.C. MOORE Tel. (607) 778-2423 Counsel for Amicus Curiae Fax. (607) 778-8870 New York Law Journal – August 8, 2011 Outside Counsel Police and District Attorneys Endorse Video Recording of Interrogations Kristine Hamann New York State's law enforcement has made dramatic progress toward its goal of video recording the entire custodial interview of a suspect. This goal is the culmination of a gradual shift in approach from the days when only summary statements from suspects were recorded. On Dec. 14, 2010, the endorsement of video recording interrogations and statewide protocols spearheaded by the Best Practices Committee of the District Attorneys Association was1 announced in a press conference led by Derek Champagne, District Attorney of Franklin County and president of the District Attorneys Association. The statewide protocols were based on a review by the Best Practices Committee of early video recording pilot projects. The review was conducted in conjunction with the New York City Police Department (NYPD), the New York State Police, the state Chiefs of Police Association, and the state Sheriff's Association. After many conversations and drafts between police and district attorneys, a state standard emerged that could be used in all jurisdictions—urban, rural and suburban. As the protocols were created by experienced members of law enforcement, they reflected the practical realities of investigations and crime fighting, as well as regional differences. Development of Pilot Projects The pilot projects have demonstrated that when the entire police interrogation is recorded, no words will be forgotten, no nuances will be lost, and the conduct of the questioner and the questioned can be fully evaluated. The ability to solve crimes is enhanced because a suspect's own words can be reviewed in detail and analyzed in the light of the other evidence of the case. Though experience shows that guilty suspects rarely provide fully candid statements to the police, what they say or do not say to the police is revealing and probative. Video recording is equally important to assess the possibility of a false confession. A review of wrongful convictions has demonstrated that false confessions are possible, even when the confession is to an extremely serious crime such as rape or murder. Some argue that juveniles or those who are mentally impaired may be especially susceptible to making a false confession. This issue, as well as any others that could affect the voluntariness and truthfulness of a suspect's statement, can be resolved by viewing a video recording of the entire interrogation. Judges and juries will have a firm basis upon which to evaluate the entire questioning process. Did the police supply the suspect with critical evidence? Was the suspect coerced or threatened? Did the suspect appear to understand the questions? Was the suspect susceptible to suggestion? Questions such as these can be resolved by reviewing the recording. District Attorney Gerald Mollen of Broome County, which includes the city of Binghamton, was the first law enforcement official in New York State to advocate for the full video recording of Exhibit 34 interrogations. After an evidence-tampering scandal in the early '90s, where the police falsified fingerprints in several cases, Mr. Mollen believed that there had to be a better way to preserve critical evidence. With little funding, but a great deal of conviction and resolve, he began in 1993 to use his significant persuasive powers to convince his police departments to create video- recording facilities. Over the course of the next decade, one department after another changed their practices and began recording the entirety of a defendant's interrogation in major felony cases. Initially Mr. Mollen was met with a great deal of resistance, but as the officers grew more comfortable with the technology, their opposition turned to support. They soon discovered that the recordings were helpful to the prosecution of the case. Valuable details of a defendant's statement were preserved, claims of improper police behavior were easily thwarted, and juries could evaluate the credibility of the defendant's statements on their own. Mr. Mollen had many visitors who came to see what he had accomplished. His vision began to be replicated in other areas of the state through pilot projects. Starting in 2006, grants from the Division of Criminal Justice Services (DCJS) and from the New York State Bar Association spurred the creation of additional video-recording facilities. With this financial support, the police departments in Rochester and Schenectady joined in, nudged along by District Attorneys Michael Green and Robert Carney. Gradually, video-recording facilities were being opened in small police departments in counties all around the state, including Cayuga, Chenango, Chautauqua, Clinton, Columbia, Dutchess, Franklin, Fulton, Genesee, Greene, Herkimer, Jefferson, Madison, Niagara, Oneida, Ontario, Orange, Otsego, Rensselaer, Sullivan, Tioga, Ulster, Washington and Wyoming. The pilot projects allow law enforcement to experiment with various protocols and equipment and provide an opportunity to see how the recordings play out in a trial. It has taken up to two years from the time a grant application is submitted to getting an interview location up and running. Some departments will share facilities; other departments will need several facilities depending on geography and volume of arrests. Since there are more than 550 police departments in New York State, there is much work to be done. In May 2011, DCJS announced $477,846 in grants have been awarded to 22 upstate counties for either initial implementation or further expansion of video-recording facilities. In all, DCJS has2 invested more than $2 million in federal grant money to support this initiative. The state bar contributed $200,000. With the awarding of these grants, 58 of the state's 62 counties in New York State either have at least one video-recording facility in a police department or are in the process of implementing a facility.3 Video Recording Protocols The protocols developed by the Best Practices Committee with the state's police agencies provide guidance as to when and how to conduct a video-recorded interrogation of a suspect in custody on a qualifying offense. A series of circumstances where recording may not be practicable is outlined, for example, the equipment breaks, the interview room is in use, the suspect refuses to be recorded, or the suspect is at a location that has no recording device. Similarly, statements are not expected to be recorded if the statement is made spontaneously or if a suspect is questioned Exhibit 35 in the field about evidence critical to the investigation, such as "Where is the gun?" or "Where is your accomplice?" The offenses qualifying for recording are left to the discretion of each jurisdiction. Some departments have begun with homicides, while others have chosen to begin with less serious crimes so that the kinks are worked out with less significant consequences. Already these growing pains are being resolved and the numbers of qualifying offenses are expanding where resources and logistics permit. In jurisdictions where video recording is well established, such as Broome, Monroe, Albany and Schenectady counties, some departments record all felonies. Capacity is a significant factor in choosing qualifying offenses. In New York State there were 585,000 adult arrests in 2010. It would be physically impossible to record statements made by suspects in all of these felonies and misdemeanors given the facilities and funding available. Choices must be made. The NYPD has two pilot programs, one in Brooklyn and one in the Bronx, where suspects charged with felonious assault are video-recorded. From these two programs, NYPD will work through the technical and logistical issues that arise in a big city. The protocols allow the police departments to choose whether to have the camera in view or hidden from the suspect. If the camera is covert, as most are, the investigator is required by the protocols to tell the suspect that the interrogation is being recorded only if the suspect inquires. Legal issues are also addressed. The protocols alert the officer to the suspect's right to remain silent, the right to counsel, and the suspect's rights when an attorney comes to the police facility. For the questioning of a juvenile, the protocols suggest the use of simplified Miranda warnings that make it easier for a juvenile to understand his rights. However, these are complex issues, which cannot be fully explained in a protocol. Thus, training on these legal issues, as well as on the practical implementation of video recording interrogations, is being conducted by DCJS, with the help of the Best Practices Committee. Moving Forward We have learned many lessons from the pilot programs. Technical problems plagued some of the new facilities, while logistics became an issue in others. In one homicide case, the soundproofing in the wall fell in front of the concealed microphone making the statement hard to hear; in another the audio and the video were not synchronized. Some found the position of the parties problematic, for example in the case where the fixed camera on the wall only recorded the side of a suspect's hoodie after he shifted in his chair. These problems are being resolved through shared experience. In these difficult financial times, cost remains a significant issue. Video-recording is expensive. Though cameras and DVDs are reasonably priced—the costs range anywhere from $5,000 to $35,000 per room—they are just a small part of the overall budget needed to record statements. A soundproof room must be built, with proper lighting and sound recording abilities. Recordings have to copied, stored, redacted and transcribed. Translators are needed, particularly in counties where many languages are spoken. Grand jury rooms and courtrooms must be equipped to display the recordings. Since the statements are recorded from beginning to end, they can be very long. One statement extended over a 24-hour period. Someone must listen to the recording and Exhibit 36 evaluate its contents. This is a time-consuming task for law enforcement personnel. Finally, equipment must also be upgraded and replaced as the project moves forward. Despite the financial obstacles, video recording of interrogations has taken hold in New York. It is a program that helps law enforcement and suspects alike. With the generous funding from DCJS and the state bar, the state has moved far toward its goal of video recording all felonies. Studies are needed to evaluate its overall effect on the criminal justice system. Questions include: Are there more pleas and fewer trials? Are there fewer wrongful convictions? Does it inhibit a suspect's willingness to speak? Does it improve our ability to solve crimes? These questions will be answered as we move forward. In the meantime, we know that the video recording of interrogations will continue to expand and that New York is well served by creating a more transparent and open criminal justice system. Kristine Hamann is executive assistant district attorney, Office of the Special Narcotics Prosecutor, and chair of the District Attorneys Association's Best Practices Committee. Lois Raff, counsel in the Queens District Attorney's Office, assisted in the preparation of this article. Endnotes: 1. The Best Practices Committee, formed in 2009, is made up of district attorneys and experienced assistant district attorneys from 30 New York State counties of every size. It is a sub-committee of the Fair and Ethical Administration of Justice Committee, which is chaired by District Attorney William Fitzpatrick of Onondaga County. The committee's last major initiative was the development of statewide identification procedures that have been adopted by law enforcement around the state. See NYLJ, Dec. 14, 2010. The identification procedures have been implemented or are in the process of being implemented in police departments around the state. 2. The counties receiving this funding are: Allegany, Cayuga, Chenango, Delaware, Dutchess, Essex, Jefferson, Lewis, Montgomery, Oneida, Onondaga, Oswego, Orange, Orleans, Putnam, Saratoga, Schuyler, St. Lawrence, Steuben, Wayne, Westchester and Yates. 3. Manhattan, Queens, Bronx, Staten Island and Brooklyn have video-recording capabilities in their District Attorneys' Offices and are awaiting the results of the NYPD pilot programs in Brooklyn and the Bronx. Exhibit 37