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Adverse Inference Charge Required Where Defendant Made Timely Request For Material Evidence Lost Or Destroyed By Prosecution


criminal appeals lawyer, affirmative defense, evidence of material importance

People v. Handy

20 N.Y.3d 663 2013

New York Court of Appeals

Decided on March 28, 2013

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether Defendant is entitled to an adverse inference charge when that Defendant acted with due diligence and demanded evidence that is reasonably likely to be of material importance.

Summary: Defendant was charged with three assaults on three different deputy sheriffs while Defendant was an inmate at the Monroe County Jail.

The main issue in this case is that there was a video camera located in the cellblock where Defendant and Deputy Saeva had their altercation. Saeva testified that the camera faced toward Defendant’s cell but not directly towards it. However, it is undisputed that the video images were destroyed before trial.

In an omnibus motion made before trial, Defendant asked whether there was any electronic surveillance in any form was utilized in this case and the location of such types. The People responded that they have provided all discoverable material in their possession and that to the extent that there may be any videotape Defendant would be permitted to view or inspect them. At trial, the court agreed to give an adverse inference charge to all counts except count three.

The Appellate Division affirmed Defendant’s conviction on count two, rejecting Defendant’s argument that an adverse inference charge should have been given because there was no support in the record for Defendant’s assertion that the videotape was exculpatory and thus his contention that the alleged video tape was Brady material. The Court of Appeals granted leave to appeal and reversed the order of the Appellate Division.

The Court of Appeals held that when a Defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the Defendant is entitled to an adverse inference charge.

See Also: Rape Shield Law: Court Did Not Abuse its Discretion When It Precluded Defendant From Cross-Examining A Victim’s Past Sexual Conduct, Inappropriate Attire Or Provocative Pictures On Myspace During A Prosecution For A Sex Offense

Holding: The Court of Appeals held that when a Defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance and that evidence has been destroyed by the State, the Defendant is entitled to an permissive adverse inference charge that instructs the jury that it may draw an inference in Defendant’s favor.

An adverse inference charge mitigates the harm done to the Defendant, resulting from the risk that the State has lost exculpatory evidence, without terminating the prosecution.

Facts: Defendant was charged with three assaults on three different deputy sheriffs while incarcerated. Counts one and two and three referred to alleged assaults on. Defendant was acquitted on the first and third counts, but was convicted on the second. According to Deputy Brandon Seava’s testimony, he asked Defendant to give him his boxer shorts and sandals because they were not “jail issue” and Defendant refused which resulted in an altercation.

Defendant testified stating that Seava was the one who started the physical fight and swung at Defendant and he did not recall Schliff ever being present among the officers who escorted him away, as well as kicking or trying to hurt any of the deputies. The jury acquitted Defendant of assaulting Seava, but convicted him of assaulting Schliff.

A video camera was located in the cellblock where Defendant and Saeva had their altercation. Saeva testified that the camera faced towards Defendant’s cell but not directly toward it. He testified that he had looked at the images recorded by that camera and had been able to see a very small part of the November 8th incident.

However, the video images were destroyed before trial.  In an omnibus motion made before trial, Defendant asked whether there had been any electronic surveillance in any form that was utilized in this case and the location of such types. The People responded that they have provided all discoverable material and that to the extent that there may be any videotape Defendant would be permitted to view or inspect them. At trial, the court agreed to give an adverse inference charge with respect to any video of the January incident, because Defendant had asked for the preservation before it was destroyed, the language of the charge was given to count three but the court refused to give an adverse inference charge to counts one and two.

The Appellate Division affirmed Defendant’s conviction on count two, rejecting his argument that an adverse inference charge should have been given because there was no support in the record for Defendant’s assertion that the alleged video tape was exculpatory and thus his contention that the alleged video tape was Brady material was speculative. The Court of Appeals granted Defendant leave to appeal and reversed the Appellate Division’s order.

Legal Analysis: The Court of Appeals held that a Defendant who demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the Defendant is entitled to an adverse inference charge that instructs the jury that it may draw an inference in Defendant’s favor.

Under the Brady rule, the suppression by the Prosecution of evidence favorable to an accused upon request violates due process where the evidence is material irrespective of the good faith or bad faith of the prosecution Brady v. Maryland, 373 US 83, 87, 1963. Even without a request, disclosure of such evidence is required if the omitted evidence created a reasonable doubt that did not otherwise exist of the Defendant’s guilt. The application of this is rule applies to cases where evidence has been lost or destroyed, so that it would be impossible to know for sure whether it would have helped the Defendant or not.

The Court of Appeals held that the United States Supreme Court has held that any duty of the State to preserve evidence must be limited to evidence that might be expected to play a significant role in the suspect defense California v. Trombetta, 467, US 479 488 1984, And in Arizona v. Youngblood 488 US 51, 58 1988, The United States Supreme Court has held that unless a criminal Defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of Due Process law.

In this case, the Court of Appeals held that the issue before it was whether an adverse inference charge should have been given. An adverse inference charge mitigates the harm done to the Defendant, resulting from the risk that the State has lost exculpatory evidence, without terminating the prosecution. The rule gives the State an incentive to avoid the destruction of evidence.

This case took place in a jail where the officer’s should have taken whatever steps necessary to insure that the video would not be erased, whether simply by taking a tape or disc out of the machine, or by instructing a computer not to delete the material.

The Defendant was entitled, as he requested, to have the adverse inference charge made applicable to all counts. The evidence in question—the destroyed video images—admittedly captured part of the encounter between Saeva and Defendant. The Court of Appeals held that it cannot unquestionably accept Saeva’s assertion that it was a very small part.

The Court held that Saeva recognized the potential importance of the video by choosing to look at it himself when Defendant should have had the same opportunity. And while the video was most directly relevant to the assault on Saeva which was count one, the alleged assault on Schliff, of which Defendant was convicted followed immediately afterward and was part of the same chain of events. A video showing that Defendant either was or was not a violent aggressor in the Saeva incident would be helpful to a jury trying to decide whether Schliff’s or Defendant’s account of the later incident was true.

Accordingly, the Court of Appeals reversed the Appellate Division’s decision and a new trial was ordered.


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