New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

Rosario Rule Violation In New York: The Defendant Must Establish Prejudice

People v. Martinez

New York Court of Appeals

Decided February 18, 2014  

Issue: Whether the trial judge abused his discretion when he declined to give an adverse inference charge regarding the loss of the handwritten complaint report (commonly referred to as a “scratch 61”) prepared by a police officer who responded to a 911 call reporting a robbery.

Holding: The loss or destruction of Rosario material is not presumptively prejudicial.  Willful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice.  If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault.

Facts: On Friday, July 17, 2009, at roughly 4:00 p.m., 45-year-old Armando Irizarry, Sr. (Irizarry), a self-employed repairman, returned from a job to his apartment on the 14th floor of a high-rise building

Irizarry had lived in the same apartment there for about seven years. He was well-acquainted with defendants, longtime residents of an apartment on the building’s 13th floor. Through the years, he had engaged in casual conversation with them both.

Irizarry owns a Jack Russell terrier, a very nervous dog that “hated” Christopher. When Irizarry left his apartment with the dog to go downstairs and outside to walk her, the terrier would bark at Christopher, who invariably reacted by “run[ning] awkwardly . . . like hopping” as he “back[ed] up away from” the dog, scared. Irizarry also encountered Selbin a few times a week in the building. He noticed that Selbin, too, had “a particular way of walk[ing]” and holding his shoulders.

One evening Irizarry ordered takeout from a Chinese restaurant and gave his son $20 to pay for the food. At about 5:00, he accompanied his son into the 14th floor’s well-lit hallway on the way to the elevator and downstairs to the lobby to pick up the food delivery.

Suddenly, though, a man emerged from the stairwell, dressed from head to toe in black. His face hidden behind a ski mask that exposed only his mouth and eyes, the man also wore sunglasses, a hat and gloves. Armed with a baseball bat, he was closely followed by a second man, similarly clad all in black, with his head and face concealed by a hood and a ski mask that exposed only his eyes. The second man carried a gun.

Irizarry “right away” recognized the first man as Selbin “because of the way he walks” and because he is “really slim and tall.”  Selbin pushed Irizarry and told him to “Give it up.” Now fearful that Selbin and his companion intended harm and sensing that Selbin was ready to swing the bat at him, Irizarry pulled out from his pocket a sock in which he had stuffed a billiard ball. He always carried this makeshift weapon with him for protection.

Irizarry threatened Selbin with the billiard ball, and called out to his son to alert him to the danger. Selbin then walked toward Irizarry’s son, swinging the bat from side to side and signaling him to be quiet by putting a finger up to his mouth and vocalizing “Shh.” As Selbin made this gesture, he inadvertently revealed his mustache.

Irizarry turned his attention to the other man so as “to put space between” that man’s gun and Irizarry’s son. As he advanced, brandishing his billiard ball, the gunman immediately retreated to stairwell B by running backward “just like . . . when he [saw Irizarry’s] Jack Russell dog. Exactly the same thing,” which is when and how Irizarry recognized Christopher.

Irizarry “decided to run for [his] life” and “drag[ged his] son with [him], all the way downstairs to the first floor,” where he called 911 at 5:47 p.m. Irizarry told the operator that he thought he knew the perpetrators’ identities, but he did not then name them.

Police Officer Hairo Franco and his partner arrived at the building at 5:55 p.m. and went to Irizarry’s apartment. Irizarry gave the police a description of the perpetrators. He still did not identify either of them by name, however.

They spoke to a detective. During this interview, Irizarry identified Selbin as one of the perpetrators. And at about 7:00 p.m. that evening, they arrived at defendants’ apartment, and discovered Selbin inside, huddling on the floor under a jumble of clothes; he sported a fresh cut and lump on his forehead.

Officer Franco on cross-examination acknowledged that the only “paperwork” or notes he created between the time he first arrived at the Havemeyer address and Selbin’s arrest were to be found in his memo book. When he returned to the precinct after the arrest, he prepared a scratch 61, which he “put in the bin where it gets filed.” Asked if this was “[t]he same file as the other paperwork in this case that was turned over to the prosecutor,” Officer Franco answered “No.” He confirmed that he never gave the scratch 61, the handwritten complaint report, to the prosecutor and did not have it with him. Neither Officer Franco’s memo book nor the typewritten complaint report set out any description of the perpetrators.

At the conclusion of the People’s case, Christopher’s attorney requested the scratch 61 prepared by Officer Franco. The prosecutor indicated that this document had never been turned over to the District Attorney’s office, and, as she understood Officer Franco’s testimony, he could not locate it.

“[Officer Franco] said he put it in the bin where it’s supposed to go and — I would call upon for the production of that (sic). And if that cannot be produced, I would ask that the jury be instructed that they can draw an adverse inference on that.”

After the close of evidence, the following exchange took place:

“THE COURT: I am not going to charge. There is a reason to be said he doesn’t have it any more (sic), and therefore, I’m not going to give you an adverse inference charge.”

As part of the identification charge, the judge instructed the jury that “[w]hen [Irizarry] testified about Selbin Martinez he said he recognized his manner of walking[,] body [] shape and saw a portion of his face.” Selbin’s attorney objected that the trial judge thereby erroneously instructed the jury that Irizarry made a facial identification of Selbin.

Legal Analysis: CPL Section 240.75 prohibits reversal where a defendant has been deprived of Rosario material at a trial or other proceeding absent a reasonable possibility that the nondisclosure materially contributed to the result.

A showing of prejudice is required as a prerequisite to a sanction. Here, defendants argue that they were indeed prejudiced by the unavailability of the scratch, and so the trial judge abused his discretion when he declined to issue an adverse inference charge, the mildest sanction available.

Willful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice.  If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault. The focus, though, is on the need to eliminate prejudice to the defendant.

Here, defendants did not establish prejudice, as is their burden. Defendants fault the trial judge for not analyzing prejudice when he denied their request for an adverse inference charge, but they did not even mention the word. Instead, Christopher’s attorney requested the instruction simply because the scratch 61 could not be produced. The judge essentially (and correctly) ruled that inadvertent loss alone was insufficient to require a sanction.

Of course, it is difficult to imagine how defendants might have been prejudiced by the loss of the scratch 61.

If conjecture like this, built on a foundation of fortuity, is sufficient for a showing of prejudice, the loss or destruction of Rosario material is not just presumptively prejudicial, as Selbin advocates, it is per se prejudicial. And while Criminal Procedure Law § 240.75 does not directly apply in a case where the claim relates to the proper sanction when Rosario material has been lost to the defendant’s prejudice, its enactment clearly signals the legislature’s antipathy toward per se rules leading to the reversal of convictions for Rosario violations.

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.