People v. Mallet

Decision Date23 March 1995
Citation627 N.Y.S.2d 248,164 Misc.2d 1009
PartiesThe PEOPLE of the State of New York v. John MALLET, Defendant.
CourtNew York Supreme Court

Heidi Poreda, Legal Aid Soc., Brooklyn, for John Mallet, defendant.

Charles J. Hynes, Dist. Atty. for the County of Kings (Caroline Dolan and Diana Lucas, of counsel), Brooklyn, for the People.


The defendant John Mallet stands accused inter alia of robbery in the second degree. The defendant was granted a combined Mapp-Wade hearing which was conducted

                before this Court.   The People called two witnesses, Transit Police Officers Balsamo and Burrell.   The defense called no witnesses.   Certain Transit communications tapes were destroyed by the Transit Communications Division.   A Kelly hearing (People v. Kelly, 62 N.Y.2d 516, 478 N.Y.S.2d 834, 467 N.E.2d 498) was also held.   Based upon the credible testimony of record, the Court makes the following findings


On August 9, 1994 at approximately 12:30 A.M. New York City Transit Police Officer Balsamo just entered onto the Northbound platform of the D-train at the Kings Highway Station in Brooklyn. Officer Balsamo had been stationed by the token booth entrance for more than 20 minutes prior to taking his position on the platform. He observed four black males in their late teens or early twenties at the south end of the Northbound platform. One of the four drew Officer Balsamo's attention as the young man was bent over a bag and was seemingly placing items in the bag.

At 12:32 A.M., Officer Balsamo received a radio communication directing him to proceed to the Avenue U station to meet a robbery victim, Tak Yuen, by the token booth. Police Officer Balsamo crossed over to the southbound platform to await the D-train to take him one stop to the Avenue U station. As he was waiting for the train, Officer Balsamo observed the four young men board a northbound D-train.

Officer Balsamo met the victim who told the officer that he was just robbed at the Kings Highway station by three young black men. The victim described three of the perpetrators. The description of the first perpetrator was of a male black about 21 years old, 5'10"' tall, wearing a black tee shirt and black jeans. The officer took down the description of the first perpetrator only as he recognized that the description of this person matched the description of the person that attracted his attention at the Kings Highway Station. A description of a second perpetrator was given over the radio as a black male in his teens, white tee shirt with blue stripes and black jeans. Immediately, at approximately 12:40 A.M., Officer Balsamo radioed transit communications to hold the nearest northbound D-train when it arrived at the next stop. At 12:46 A.M., the train pulled into the Beverly Road Station. Communications had notified the conductor not to open the doors and not to leave the station. At 12:43 A.M. the victim, accompanied by Officer Balsamo, a transit sergeant and another transit officer proceeded by automobile to the Beverly Road subway station. They arrived at the Beverly Road station at 1:08 A.M., where they met plainclothes Transit Police Officers Burrell and Smith.

The victim, accompanied by the transit entourage, walked on the well-lit platform alongside the first car of the 10 car lighted train and proceeded to view the occupants inside from the platform walking from car to car. The doors of the train remained closed upon its arrival at the Beverly Road station. When the victim viewed the occupants through the subway windows in the sixth or seventh car, at 1:11 A.M., he identified two of the perpetrators who robbed him. The defendant was one of those identified. 1 The doors of that particular subway car were opened, the defendant was arrested and searched for weapons. At the Transit station, eight dollars were found on the defendant as a result of the inventory search of the defendant.

There were over 100 persons on the six or seven subway cars viewed by the victim. There were approximately 12-15 people on the subway car in which the defendant was riding. There were also other groups of young black males in the various subway cars, whose occupants were previously viewed. There were 10 young black males in the subway car in which the defendant was riding. Officer Balsamo testified that he did not tell the victim that he saw a person who matched the description given by the victim, nor did he tell the victim that the perpetrators were on the train.

At the Transit precinct the victim informed Police Officer Burrell that in addition to currency, the perpetrators forcefully took the victim's black bag.

The tapes of the Transit Communications including that of Officers Balsamo and Burrell were destroyed in the ordinary course of Transit business after 90 days. The defendant's attorney failed to subpoena the Transit Authority for the production of these tapes. The District Attorney's Office subpoenaed the New York City Police Department, not the New York City Transit Police Communications Division on September 15, 1994 and again on November 4, 1994, both within 90 days, but addressed to the wrong agency. A Kelly hearing was held to determine what sanctions, if any, would be imposed.


A Kelly hearing (People v. Kelly, 62 N.Y.2d 516, 478 N.Y.S.2d 834, 467 N.E.2d 498) was held to determine the appropriate sanction, if any, to impose against the People for their failure to preserve the tapes of the various transit communications relating to witnesses at the Dunaway/Wade hearing, namely Transit Police Officers Balsamo and Burrell.

The violation herein is a case where Rosario evidence has been destroyed and cannot be produced. See People v. Haupt, 71 N.Y.2d 929, 528 N.Y.S.2d 808, 524 N.E.2d 129. "Just as the People have a duty to produce Rosario material, they also have a correlative 'obligation to preserve evidence until a request for disclosure is made.' (People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498; see also United States v. Bryant, 439 F.2d 642 (D.C.Cir.1971); People v. Saddy, 84 A.D.2d 175, 445 N.Y.S.2d 601)." People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134.

Here the People "attempted" due diligence by twice serving a subpoena on the New York City Police Department Communications Division in a timely fashion. However, the proper agency to be served was the Transit Police Department. Although no bad faith was shown by the People, the People were nonetheless negligent.

The same law firm represented the defendant from arraignment to the present. At no time did the defendant's counsel subpoena the Transit Police for the pertinent tapes.

A court's failure to impose a sanction has been upheld where absent prejudice to the defendant, a 911 tape was routinely destroyed and said destruction was not due to a lack of due diligence by the People. People v. Hyde, 172 A.D.2d 305, 568 N.Y.S.2d 388. However, a sanction is required after a 911 tape is destroyed after defendant's request for such tape [People v. Parker, 157 A.D.2d 519, 549 N.Y.S.2d 710 (Reversal required) ], but not if routinely destroyed before defendant's request. People v. Diggs, 185 A.D.2d 990, 587 N.Y.S.2d 406. The defendant here may be prejudiced by the loss or destruction of Rosario material as it related to the description of the perpetrators. The failure to impose a sanction may be an abuse of a Court's discretion even where the defendant failed to subpoena the pertinent tapes prior to their destruction as the People, albeit in good faith, subpoenaed the incorrect agency. The appropriate sanction is left to the sound discretion of the hearing Court after considering all relevant factors. People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134.

However, as explained infra, any sanction imposed may be inappropriate if the defendant is found not to have been seized by the Police. Nonetheless, the Court imposes the following sanction: An adverse inference will be drawn by the hearing Court in that the descriptions given by Transit Officers Balsamo and Burrell will be found to have varied somewhat with that contained in the destroyed tapes. This adverse inference has been factored in the Dunaway/Wade findings below and in the facts as stated above. In addition, Officer Balsamo is precluded from identifying defendant as the person he had observed at the Kings Highway station. 2 Nonetheless, subject to any and all other proper objections at trial, if any, Officer Balsamo is not precluded from testifying that the defendant upon his arrest at the Beverly Road station was wearing the same clothes as the person observed by him at the Kings Highway station.


A preliminary issue of first impression is whether the detaining of a public train at a regularly scheduled stop for 25 minutes with the doors kept closed constitutes a seizure or stop of the occupants therein, particularly the defendant.

It is clear and long well-established that the stop of an automobile is a seizure of the person governed by the constitutional strictures against unreasonable searches and seizures. See People v. Sobotker, 43 N.Y.2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218; People v. Scott, 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1; People v. John BB, 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438 N.E.2d 864; cert. den. 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400; People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39; People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872; People v. Rosario, 94 A.D.2d 329, 465 N.Y.S.2d 211; People v. Flanagan, 56 A.D.2d 658, 391 N.Y.S.2d 907; Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317; Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116; United...

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