People v. Dunn

• Decision Date: 07 January 1993
• Citation: 185 A.D.2d 54,592 N.Y.S.2d 299
• Parties: The PEOPLE of the State of New York, Respondent, v. Willie DUNN, a/k/a Charles Sherwood, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 299

592 N.Y.S.2d 299

185 A.D.2d 54

The PEOPLE of the State of New York, Respondent, v. Willie DUNN, a/k/a Charles Sherwood, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Jan. 7, 1993.

Diane Pazar, New York City, of counsel (Philip L. Weinstein, attorney), for defendant-appellant.

Morrie I. Kleinbart, New York City, of counsel (Norman Barclay and Eleanor J. Ostrow, with him on the brief, Robert M. Morgenthau, Dist. Atty., attorney), for respondent.

Before MILONAS, J.P., and ELLERIN, ROSS, ASCH and KASSAL, JJ.

ASCH, Justice.

The charges in this case arise from five separate incidents, beginning in July 1986. On July 3, 1986, a man representing himself as an executive of a foreign branch of General Electric Corporation, asked that $5,000 in travelers' checks be prepared and delivered to an associate, K.D. Huffman. Thereafter, defendant appeared at the offices of General Electric, identifying himself as K.D. Huffman, and as Huffman, signed five Citicorp travelers' checks purchase agreements, one for each of five $1,000 packets of checks, then signed many of the checks in the upper left hand corner, as required of purchasers. When it was discovered a week or two later that there had been no authorization for the checks, most, if not all, of the checks had been negotiated at various metropolitan locations. Defendant was convicted of one count of grand larceny in the second degree for stealing property having an aggregate value in excess of $1,500, three counts of forgery in the second degree and three counts of criminal possession of a forged instrument in the second degree with respect to the travelers' checks and of forgery in the second degree with respect to the purchase agreement.

On August 14, 1986 to August 18, 1986, defendant stayed at the Days Inn in Manhattan registering as Kevin D. Huffman, and advancing $140 as a deposit. During his stay, he presented the cashier with a purchase order from the Metropolitan Life Insurance Company, providing that Met Life was to be billed for the room, taxes and incidental expenses. Days Inn refunded defendant his initial deposit and the bill for his four day stay ($819.67) was never paid since defendant was neither employed by Metropolitan nor authorized to present such a purchase order. Defendant was convicted of criminal possession of a forged instrument in the second degree.

On August 22, 1986, defendant was arrested at the Omni Park Central Hotel when the police traced his car to that location and learned a K.D. Huffman was registered there. A Chevron Gulf credit card belonging to Rita Goodgame was recovered from defendant. Upon his arrest, defendant was charged with forgery in the second degree, criminal impersonation in the second degree, and theft of services, all arising from the Days Inn incident. At the trial, defendant was acquitted of criminal possession of stolen property in the second degree relating to the possession of the Chevron credit card.

On September 12, 1986, an assistant manager at the Helmsley Palace Hotel received a call from someone identifying himself as Ismael Lopez, the controller of the hotel, and advising the assistant manager that a number of envelopes were to be delivered to him and Mrs. Helmsley at the hotel and that they should be paid for out of petty cash. Later that evening, the defendant delivered four envelopes for which the assistant manager paid him $500. The envelopes contained newspapers. Defendant was acquitted of grand larceny in the third degree.

On September 15, 1986, the defendant employed the identical stratagem at the St. Regis Hotel and received $750. He was convicted of grand larceny in the third degree for stealing property with an aggregate value in excess of $250.

During cross-examination, Detective Delgrosso admitted he had discarded between 40 and 70 pages of notes he had taken during his investigation. His testimony made clear he had destroyed them only after using them to prepare his formal reports, adding "[t]here may have been one or two notes that I didn't make note of at the time [when the formal reports were prepared] but later on I probably did". The People concede that many of the destroyed notes would constitute Rosario material (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881), but assert that defendant failed to make a timely request for a sanction because of the destruction of the scratch notes, and therefore the issue has not been preserved for review. However, the defendant made a motion prior to the charge that the indictment be dismissed, or, in the alternative, that Delgrosso's testimony be stricken. Since the notes concededly had been destroyed, defendant could not use them at trial regardless of when he requested a sanction. Further, since the court was apprised of the request and need for a sanction before it charged the jury, it could have fashioned an adverse inference charge which would have been an appropriate sanction under the circumstances (see People v. McMahon, 180 A.D.2d 535, 580 N.Y.S.2d 252).

The People also contend that defendant was not prejudiced by the unavailability of the notes. However, the cross-examination of Detective Delgrosso established he had destroyed a large volume of contemporaneous notes after he "probably" transferred the information to formal police reports. The detective admitted on cross examination that the destroyed scratch notes might have contained descriptions from certain of the eyewitnesses. The People further acknowledge on appeal "the possibility that [the notes] had contained descriptions from the eyewitnesses which might have differed from the descriptions in evidence at the trial". Defendant's ability to cross-examine the investigating detective, as well as the eyewitnesses, was, therefore, impeded by the destruction of the scratch notes and some sanction was required (People v. Wallace, 76 N.Y.2d 953, 955, 563 N.Y.S.2d 722, 565 N.E.2d 471; People v. Martinez, 71...