People v. Durant

• Decision Date: 23 November 2015
• Docket Number: No. 166,166
• Citation: 44 N.E.3d 173,2015 N.Y. Slip Op. 08609,23 N.Y.S.3d 98,26 N.Y.3d 341
• Parties: The PEOPLE of the State of New York, Respondent, v. Everett M. DURANT, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 341

44 N.E.3d 173

23 N.Y.S.3d 98

2015 N.Y. Slip Op. 08609

The PEOPLE of the State of New York, Respondent

v.Everett M. DURANT, Appellant.

No. 166

Court of Appeals of New York.

Nov. 23, 2015.

Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.

Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.

Weil Gotshal & Manges LLP, New York City (Steven A. Reiss and Melody E. Akhavan of counsel), and Weil Gotshal & Manges, LLP, Washington, D.C. (David B. Hird, Daniel Riegel, James Sadler and Vanshika Vij of counsel), for The Innocence Project, amicus curiae.

Gerald F. Mollen, District Attorneys Association of the State of New York, Binghamton, and New York Prosecutors Training Institute, Albany (Wendy Evans Lehmann and Hannah E.C. Moore of counsel), for District Attorneys Association of the State of New York, amicus curiae.

OPINION OF THE COURT

ABDUS–SALAAM

, J.

The increasing availability of electronic recording technology raises many complex questions of law and policy in the realm of criminal justice, most of which we cannot and do not resolve in this case. Instead, we are confronted here with a single narrow question: does the common law invariably require a court

to issue an adverse inference instruction against the People at trial based solely on the police's failure to electronically record the custodial interrogation of a defendant? We answer this question in the negative. Leaving aside whether a trial court has the power to deliver such an instruction based on the unique facts of a particular case, the court does not necessarily abuse its discretion or otherwise commit legal error by declining to issue the charge in every case in which the police fail to record a custodial interrogation. Thus, although the better practice would be for the police to use the equipment at their disposal to record interrogations, their failure to take such action does not, as a matter of law, automatically compel a trial court to deliver an adverse inference charge to a deliberating jury.

I.

Defendant Everett M. Durant was arrested and tried on a single count of robbery in the second degree (see Penal Law § 160.10[1]

) based on his alleged robbery of Emmett Hunter. The People's evidence at trial showed that, on the night of November 28, 2008, Hunter walked past defendant and a group of other young men near a street corner on the east side of Rochester. Defendant placed Hunter in a choke hold, possibly rendering him briefly unconscious. Hunter then saw defendant holding his wallet. As the group started walking away, Hunter called the police on his cell phone to report the robbery. Upon observing Hunter making the call, defendant approached Hunter again and took his phone. Defendant and the other young men then started punching and kicking Hunter. After a struggle, Hunter broke away from the group and ran to a nearby fire station, where he pressed an emergency alarm button, causing his assailants to scatter. Soon thereafter, the police arrived, and they chased down and apprehended defendant.

The police transported defendant to the east side police station because, as Police Investigator Trevor Powell later explained at trial, it was “common practice when a crime occur[red] on the east side to go to the east side office,” whereas “[i]f it [wa]s a homicide [one would] take the [suspect] back to the Public Safety Building.” In that sense, Powell observed, “this crime required” the officers to transport defendant to the east side station. Significantly, Powell explained that the officers at the east side station “didn't have any access” to recording equipment; although the Public Safety Building, which

was roughly a 10–minute drive from the east side station, had video recording equipment, no recording equipment of any kind was kept at the east side station.^*

At the east side station, defendant was placed in an interview room and handcuffed to a table. Powell entered the room and issued Miranda warnings to defendant (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966]

), and defendant agreed to speak to Powell and answer his questions. When Powell inquired about the reason for defendant's arrest, defendant initially stated that he and his sister had happened upon the scene of a fight in progress earlier that night, and that he had punched Hunter in order to break up the fight. At Powell's request, defendant provided Powell with his sister's phone number, but when Powell called the number, no one answered.

Next, Powell “told [defendant] that it [wa]s time to tell the truth and to man up.” In response, defendant changed his narrative of the crime, saying that he had seen Hunter “being crowded by this guy Little C and his brothers” and had joined those individuals in assaulting Hunter. Defendant denied taking anything from Hunter. After defendant made this oral statement, Powell wrote out a version of that statement for defendant to sign, making a few changes to the written version at defendant's request before he signed it.

Due to the lack of a recording of the interrogation, the People's trial proof of the events that unfolded in the interview room consisted solely of Powell's testimony and written summary of defendant's statement. In response to the People's proof, defendant called his sister to the stand, and she testified consistently with his final statement to Powell, alleging that he had merely assaulted, but not robbed, Hunter.

Prior to summations, defense counsel requested that the court issue a permissive adverse inference charge against the People based on the police's failure to record defendant's interrogation. Counsel gave the court a written copy of his suggested instructions. In sum and substance, counsel proposed that the court tell the jurors that they could consider the police's failure to record the interrogation in determining the voluntariness of defendant's alleged statement to the police and the weight to be given to it; in the absence of a recording, they did not have reliable and complete evidence of the contents of defendant's alleged statement to the police or whether he

had made the statement at all; they should weigh the evidence of the alleged statement with great caution; if the People did not prove beyond a reasonable doubt the existence and voluntariness of the statement, the jurors should disregard it entirely; and “[t]he absence of an electronic recording permits, but does not compel, [the jurors] to conclude that the prosecution has failed to prove that a statement was either actually or voluntarily made, or, if made, that it [was] accurately reported by the State's witnesses.” Defense counsel did not request a standard jury instruction regarding the voluntariness of defendant's statement in general, nor did he specifically ask the court to submit the issue of voluntariness to the jury (see CJI2d [NY] Statements [Admissions, Confessions] ). The court denied defense counsel's request for an adverse inference charge and related instructions on the jury's consideration of the police's failure to record defendant's interrogation.

During summations, the court permitted defense counsel to argue that the jurors could not know what actually happened in the interrogation room because the police had failed to record the interrogation. After summations, the jurors deliberated and returned a verdict convicting defendant of second-degree robbery. At a subsequent sentencing proceeding, the court sentenced defendant, as a second felony offender, to a determinate five-year prison term, to be followed by five years of postrelease supervision. Defendant appealed.

The Appellate Division unanimously affirmed the judgment of conviction and sentence, rejecting defendant's contention that the trial court had been legally required to issue an adverse inference instruction based on the police's failure to generate an electronic recording of his interrogation (see People v. Durant, 112 A.D.3d 1366, 1367, 977 N.Y.S.2d 535 [4th Dept.2013]

). A Judge of this Court granted defendant leave to appeal (23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ), and we now affirm.

II.

A

As noted previously, the issue before us is a narrow one. On this appeal, defendant does not contend that the police's decision not to record his interrogation warranted the suppression of his statement on constitutional or other grounds, and therefore we do not opine on questions of suppression and admissibility which are not before us. Nor are we called upon

to define the boundaries of the trial court's power and discretion, if any, to provide the jury with an adverse inference instruction or other guidance on its consideration of the significance of the police's failure to record an interrogation on a case-by-case basis. Rather, this appeal presents only the issue of whether, in every case where the police could have made, but failed to make, an electronic recording of an interrogation, the trial court must, as a matter of law, invariably issue a permissive adverse inference charge.

To resolve that issue, we must examine the circumstances that have previously been held to warrant an adverse inference instruction in criminal cases. In that regard, the common law permits, and sometimes compels, a trial court to instruct the jurors that they may draw an inference unfavorable to the People based upon the government's failure to present, preserve or disclose certain evidence, and the court's decision to issue such a charge is reviewable in this Court for abuse of discretion as a matter of law (see People v. Martinez, 22 N.Y.3d 551, 567, 983 N.Y.S.2d 468, 6 N.E.3d 586 [2014]

; People v. Savinon, 100 N.Y.2d 192, 197, 761 N.Y.S.2d 144, 791 N.E.2d 401 [2003] ). A permissive adverse inference instruction typically serves as either: (1) a penalty for the government's violation of its statutory and constitutional duties or its destruction of material evidence; or (2)...