People v. Marks

• Decision Date: 14 February 1985
• Citation: 486 N.Y.S.2d 971,127 Misc.2d 591
• Parties: The PEOPLE of the State of New York v. Ernest MARKS, Defendant.
• Court: New York Supreme Court

Page 971

486 N.Y.S.2d 971

127 Misc.2d 591

The PEOPLE of the State of New York v. Ernest MARKS, Defendant.

Supreme Court, New York County Part 88.

Feb. 14, 1985.

Lawrence J.D. Mort, New York City, and Kenneth E. Bruce, New York City, for defendant.

Albert Ratliff, Sp. Narcotics Prosecutor, New York City, for the People.

BUDD G. GOODMAN, Justice:

The defendant, Ernest Marks, has been indicted on charges of Criminal Sale of a Controlled Substance (cocaine) in the First Degree, Attempted Criminal Sale of a Controlled Substance (cocaine) in the First Degree, and Criminal Possession of a Controlled Substance (cocaine) in the First Degree.

Prior to the first sale, a confidential informant contacted the defendant on several occasions by telephone and took him, by car, from Staten Island to Washington Heights on three separate occasions.

The first sale for which the defendant was indicted was consummated December 19, 1983. The second sale was arranged for January 5, 1984; at that time the defendant and two others, who ultimately pled guilty to some of the charges, were arrested. Mr. Marks, who has no drug related criminal history and who never handled either money or drugs during the transaction, but merely served as a contact, elected to go to trial; he grounded his defense on a theory of entrapment.

On September 10, 1984, during the trial, the People disclosed the existence of a taped telephone conversation between Mr. Marks and the confidential informant, made on December 8, 1983, eleven days before the first sale.

Listening to the tape, out of the presence of the jury, it became clear to all, including the Assistant District Attorney, that Mr. Marks had a viable entrapment defense based, in large part, on the tape. The People were instructed to make a copy of the tape for defense counsel, who indicated that he planned to offer it in evidence the following day as his exhibit. The next morning the Assistant District Attorney discovered and informed the court that, instead of duplicating the tape, the officer assigned to the task had accidently erased it.

Upon hearing this, defense counsel successfully moved, over the objection of the People, for a mistrial.

On November 26, 1984, defense counsel moved, on papers, for a dismissal of the indictment on due process/double-jeopardy grounds.

The People assert that, procedurally, the defendant, by moving for a mistrial, waived his right to have his motion considered on the merits, but even if the defendant has not waived his right, he is still disentitled to dismissal since the People exhibited neither bad faith nor intent to provoke a mistrial in the erasure of the tape. Moreover, the People assert, the defendant is still effectively able to present his defense. The court is unpersuaded by these assertions.

The People cite People v. Michael, ¹ and People v. Ilker, ² in support of their waiver argument. Neither case, however, is a correct statement of the law, as it applies to Mr. Marks.

In Michael, the court, sua sponte, declared a mistrial, with neither consent of the defendant nor presence of defense counsel. The Court of Appeals held that "where a court declares a mistrial without obtaining the defendant's consent the double jeopardy provisions of both ... State ... and Federal Constitution[s] prohibit retrial for the same crime unless 'there is a manifest necessity for [the mistrial] or the ends of public justice would otherwise be defeated.' " ³ The court further held that where a court, prior to a vacation, declares a mistrial, for the court's or the jury's convenience, without inquiry into the jurors' ability to render a fair verdict if required to remain, then "discretion falters and abuse appears." ⁴ That court based its decision on CPL 280.10 subd. 3. This case however falls, not under subd. 3, but rather under subd. 1, which states, in pertinent part:

At any time during the trial, the court must

declare a mistrial and order a new trial of the indictment; upon motion of the defendant, when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives him of a fair trial. ⁵

Ilker stands for the proposition that where a defendant consents to a mistrial and then, after the second trial, brings an appeal, where, for the first time, he raises the issue of double-jeopardy, his claim is untimely and therefore has been waived. In contrast to both Michael and Ilker, Mr. Marks brought his motion prior to the second trial, thus, the issue is timely raised, notwithstanding that initial motion. Therefore, Mr. Marks has not waived his right to have his motion considered on the merits.

Having resolved the procedural issue in favor of the defendant, the court considers, next, the substantive issue of whether the People, through the behavior of their agent, the police, have deprived defendant of the opportunity to receive a fair trial. The court has found no published New York cases on point.

Defense argues first that the tape of the conversation between defendant, Ernest Marks, and the confidential informant was so central and vital to his defense of entrapment that its destruction has irreparably destroyed his ability to prove his defense and that, therefore, due process requires dismissal of all of the charges in the indictment. Further, he argues that the destruction of the tape was a deliberate act, aimed at provoking a mistrial, or, at the very least, gross negligence requiring dismissal as the only appropriate sanction against the People. The court disagrees with the defendant's second argument.

Fairness in a criminal trial requires that "available evidence tending to show innocence, as well as that tending to show guilt, be fully aired before the jury." ⁶ If it is true that the purpose of a trial is a search for the truth, ⁷ then the ultimate determination by the jury should be based on all the relevant evidence. "[S]uppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material ... to guilt ... irrespective of the good faith or bad faith of the prosecution." ⁸ This rule has been interpreted as placing upon the Government a correlative duty to preserve such material evidence. ⁹ Although it may be true, in some cases, that damnum sine injuria esse potest ¹⁰ (there may be injury without injustice) as the People here claim, it is also true that there are times when the Government's negligence "in losing documents or evidence so prejudices the defendant that he cannot [receive] a fair trial. In those situations the prejudice is so great that the truth seeking process which is the goal of any trial is thwarted and justice requires that sanctions, even dismissal, must be imposed." ¹¹

Both fairness and due process require that all evidence which "might have led the jury to entertain a reasonable doubt about [defendants'] guilt" ¹² must be disclosed. On this issue one of the leading Federal cases upon which the People rely is United States v. Bryant, ¹³ where the court held that

[t]he purpose of the duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence; rather, it is also to make of the trial a search for truth informed by all relevant material, much of which, because of imbalance in investigative resources, will be exclusively in the hands of the Government. ¹⁴

Destruction of evidence material and necessary to the determination of guilt or non-guilt in a trial, whether destroyed in bad or good faith, corrupts the truth seeking function of the trial. The proper focus of the test is upon "the ultimate possibility of harm to the defendant." ¹⁵

In Bryant, the United States Court of Appeals found that there was no possibility that the lost tapes would be found and that "a new trial would be simply a repetition of the first trial, similarly infected by non-disclosure of discoverable evidence." ¹⁶ The same is true here. The fact that the existence and content of the tape has been disclosed to the court and only subsequently destroyed is of no moment. The defendant has been denied the use, at trial, of an important piece of substantive evidence and any new trial would be "similarly infected." ¹⁷

Therefore, the People's reliance upon Bryant is misplaced, as is their reliance on People v. Kelly. ¹⁸ In Kelly, the defendant took a one dollar bill protruding from a decoy's pocket. The defendant's "dubious" ¹⁹ entrapment defense was that the one dollar bill had been doctored to look like a twenty and the police's property department, following ordinary procedures in decoy cases, had immediately returned the money to the decoy, thus destroying his entrapment defense. The court said that although the intentional relinquishment of the property was inexcusable, the return of such property in decoy cases is a general practice which may "demonstrate the absence of ... intent to harm [the] defendants, it falls far short of satisfying the People's burden of establishing that they are not accountable for the loss." ²⁰ The question in Kelly was what sanctions, if any, were necessary under the facts. "In fashioning an 'appropriate' response to the prosecution's wrongful failure to preserve evidence [the court held that] the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society." ²¹ The court found invalid the defendant's argument that his case was irreparably damaged by the unavailability of the property.

The case at bar, of course, differs from Kelly, in that the court has found that the entrapment defense here is not at all "dubious" but, in fact, a viable one.

The Double Jeopardy Clause of the Fifth Amendment guards the interest of the criminal defendant in avoiding more than one trial, even where no final determination of guilt or non-guilt has been reached. ²²...