People v. Kelly

• Decision Date: 29 June 1984
• Citation: 478 N.Y.S.2d 834,62 N.Y.2d 516,467 N.E.2d 498
• Parties: , 467 N.E.2d 498 The PEOPLE of the State of New York, Appellant, v. Nathaniel KELLY and Angel Marrero, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 834

478 N.Y.S.2d 834

62 N.Y.2d 516, 467 N.E.2d 498

The PEOPLE of the State of New York, Appellant, v. Nathaniel KELLY and Angel Marrero, Respondents.

Court of Appeals of New York.

June 29, 1984.

Robert M. Morgenthau, Dist. Atty. (Jeanne E. Zunich and Mark Dwyer, Asst. Dist. Attys., of counsel), for appellant

Bertrand J. Kahn and William E. Hellerstein, New York City, for Nathaniel Kelly, respondent.

Richard Ware Levitt, New York City, for Angel Marrero, respondent.

OPINION OF THE COURT

KAYE, Judge.

The question presented on this appeal is whether dismissal of two informations was an appropriate response to the prosecution's wrongful failure to preserve discoverable evidence. Because less drastic sanctions would have cured any prejudice to defendants, we hold that the court abused its discretion in dismissing the charges.

On the evening of March 21, 1981 defendants, Nathaniel Kelly and Angel Marrero, acting together, allegedly approached an undercover police officer, struck him, reached into his shoulder bag and removed a wallet containing several bills. Police apprehended defendants and charged each of them by information with criminal possession of stolen property in the third degree and petit larceny. In response to counsel's motion to discover any property taken from defendants, the prosecutor said that the police had obtained a brown wallet and $22 in cash, consisting of one twenty dollar bill and two one dollar bills. When the assistant district attorney met counsel at the property clerk's office to display the evidence, it could not be found. Subsequently, the prosecutor learned that the wallet and cash had been vouchered but, pursuant to police practice in decoy pickpocket cases, was immediately returned to the decoy officer. The evidence is irretrievably lost.

Defendants moved to dismiss the charges because of the lost evidence. They claimed that the failure to preserve the property violated section 450.10 of the Penal Law, which prohibited the return of such property without court order, ¹ and effectively precluded assertion of an entrapment defense. According to the defense, the alleged twenty dollar bill in fact was a one dollar bill, doctored to resemble a twenty. This evidence would demonstrate, defendants argued, that the police intended to use the money as an inducement and positioned it in the wallet to be visible to passers-by. The prosecutor sought to justify the practice of returning the property and contended that the evidence did not further an entrapment defense because it would not in any event have shown the positioning of the wallet or bills. Criminal Court granted defendants' motion, concluding that the evidence was discoverable and that the People violated their duty to preserve it. As to the appropriate sanction, the court dismissed the charges because the "absence of the missing evidence herein totally destroys defendants' ability to cross-examine the People's witnesses or to otherwise establish the affirmative defense of entrapment." The Appellate Term affirmed, without opinion. We now reverse.

A necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made (United States v. Bryant, 439 F.2d 642; People v. Saddy, 84 A.D.2d 175, 445 N.Y.S.2d 601). Any other rule would facilitate evasion of the disclosure requirements (United States v. Bryant, 439 F.2d 642, 651, supra ). Accordingly, where discoverable evidence gathered by the prosecution or its agent is lost, the People have a heavy burden of establishing that diligent, good-faith efforts were made to prevent the loss (id.; see, also, United States v. Augenblick, 393 U.S. 348, 355-356, 89 S.Ct. 528, 533-534, 21 L.Ed.2d 537). Otherwise, sanctions will be imposed.

The People readily admit that the wallet and currency were discoverable as "property obtained from the defendant" (CPL 240.20, subd. 1, par. ). The government was statutorily obligated to retain possession of this evidence until a court ordered it released (Penal Law, § 450.10), and the intentional relinquishment here was inexcusable. ² Though the police practice of giving back the property whenever decoy officers are involved may, as the People argue, demonstrate the absence of any intent to harm these defendants, it falls far short of satisfying the People's burden of establishing that they are not accountable for the loss. The only question, then, is what sanctions were necessary.

In fashioning an "appropriate" response to the prosecution's wrongful failure to preserve evidence (see CPL 240.70, subd. 1), the degree of prosecutorial fault surely may be considered, but the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society. Courts have devised a number of methods to reach this goal. For illustration only, and without approving or disapproving the sanctions imposed, we note that where tape recordings of an alleged drug sale were erased, thereby hindering the defendants' agency defense, courts have reduced convictions of criminal sale of a controlled substance to possession (People v. Saddy, 84 A.D.2d 175, 445 N.Y.S.2d 601, supra ); where minutes of prior testimony of prosecution witnesses were lost, courts have precluded the witness from testifying (People v. Lunney, 84 Misc.2d 1090, 378 N.Y.S.2d 559), ordered a reconstruction hearing (People v. Hicks, 85 Misc.2d 649, 381 N.Y.S.2d 794), and directed the...