People v. Munroe

• Decision Date: 24 July 2003
• Citation: 307 A.D.2d 588,763 N.Y.S.2d 691
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>IAN MUNROE, Appellant.
• Court: New York Supreme Court — Appellate Division

307 A.D.2d 588

763 N.Y.S.2d 691

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.IAN MUNROE, Appellant.

Mercure, J.

Decided July 24, 2003.

Cardona, P.J., Crew III, Rose and Lahtinen, JJ., concur.

Mercure, J.

A grand jury indicted defendant, charging him with numerous counts of sexual abuse in the first degree, sodomy in the first degree, rape in the first degree and endangering the welfare of a child. The charges arose from defendant's abuse of his stepdaughter over a 1½-year period. At a Huntley hearing, defendant asserted that a statement that he gave to the police in October 1999 should be suppressed because his waiver of his Miranda rights was not knowing and voluntary. In the statement, defendant admitted that in November 1997, he was arrested and placed on probation for hitting the then-seven-year-old victim with a belt, leaving marks on her. Defendant stated that thereafter he was afraid to leave marks on the victim again, so he punished her by pushing his finger or penis into her rectum, putting his penis into her mouth or placing his finger in her vagina. He further admitted that these incidents took place at the family's home when no one else was present except defendant's three-year-old daughter.

A State Police investigator, Tracy Eggleston, testified that he typed defendant's statement on his laptop computer after defendant was advised of his Miranda rights. Eggleston used the backspace key to make corrections as necessary and did not make any notes while defendant gave his statement. At the conclusion of the hearing, County Court determined that defendant's statement was voluntarily, knowingly and intelligently made and permitted use of the statement at trial.

During trial and outside the presence of the jury, County Court conducted a hearing pursuant to CPL 60.20 to determine if the victim, who was 10 years old at the time of trial, was qualified to give sworn testimony. After County Court ruled that the victim could give sworn testimony, she testified that defendant forced her to engage in anal and oral sex on numerous occasions, vaginal sex once and that he sometimes placed his finger in her rectum.

Thereafter, defendant objected again to admission of the October 1999 statement he gave to Eggleston, asserting that it should not be admitted into evidence because Eggleston failed to save nonfinal drafts of the statement. Rejecting this argument, County Court permitted Eggleston to testify. The court allowed defense counsel to fully question Eggleston about his conversation with defendant during the taking of the statement. Defendant subsequently read the statement and testified that its contents were not true.

The jury was not charged on four counts alleging the crime of sodomy in the first degree; it found defendant guilty of all the remaining charges. Defendant was sentenced to an aggregate prison term of 16 years. Defendant now appeals and we affirm.

Initially, we reject defendant's argument that reversal is warranted because the People violated People v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]) by failing to preserve drafts of nonfinal versions of the statement that defendant gave Eggleston. We observe that police notes and written recordings of a defendant's confession constitute Rosario material (see e.g. People v Nieves, 205 AD2d 173, 184-185 [1994], affd sub nom. People v Stokes, 88 NY2d 618 [1996]; People v Barnes, 201 AD2d 375, 375 [1994], lv denied 83 NY2d 869 [1994]). Here, although the People provided defendant with the final, saved version of his statement, Eggleston did not save earlier drafts to which he admitted corrections had been made. Nor did Eggleston make any notes regarding these changes. The parties agree that the prior drafts should be considered lost or destroyed Rosario material and defendant asserts that County Court erred in admitting the final version of the statement into evidence. Assuming without deciding that the prior unsaved drafts of the statement constitute lost or destroyed Rosario material (see generally Bandler, The New York Rosario Rule Applied to Computerized Documents: The Rigid and Impractical Duplicative Equivalent Doctrine Requires Modification, 22 Pace L Rev 407, 443-445 [2002]), we perceive no error here.

"Where the People fail to exercise due care in preserving Rosario material, and the defendant is prejudiced thereby, the [trial] court must impose an appropriate sanction" (People v Joseph, 86 NY2d 565, 570 [1995] [internal quotation marks and citations omitted]). The sanction to be imposed is "depend[ent] upon the degree of prosecutorial fault and the resulting prejudice to the defendant" (People v Banch, 80 NY2d 610, 616 [1992]; see People v Martinez, 71 NY2d 937, 940 [1988]) and our "review is limited to determining whether the trial court acted within the bounds of its discretion in selecting a sanction" (People v Banch, supra at 616).

Nothing in the record before us suggests that Eggleston acted in bad faith in failing to save drafts of defendant's statement or that he realized that editing defendant's statement constituted destruction of evidence (see People v Quiles, 198 AD2d 448, 448 [1993], lv denied 83 NY2d 857 [1994]). Furthermore, defendant fails to explain how he was prejudiced by Eggleston's failure to save drafts of the unfinished statement and does not claim that any meaningful changes were made to the statement. Rather, he offers only mere speculation that the prior nonfinal drafts might have contained material that could have been helpful on cross-examination. Moreover, defendant testified at trial that he did not make or even read the statement; he claimed that he initialed and signed the statement only because the police told him to do so. Thus, Eggleston's edits of the statement would not have had any relevance, given defendant's claim that the police essentially fabricated the statement. Inasmuch as defendant has failed to show prejudice and defense counsel was permitted to cross-examine Eggleston regarding his failure to save the prior drafts, we conclude that County Court did not abuse its discretion in refusing to apply the extreme sanction of preclusion requested by defendant (see People v Haupt, 71 NY2d 929, 930-931 [1988]; People v Bass, 277 AD2d 488, 494 [2000], lv denied 96 NY2d 780 [2001]; People v Quiles, supra at 449; cf. People v Joseph, supra at 571-572).

Defendant's argument that County Court abused its discretion in allowing the 10-year-old victim to give sworn testimony is also unpersuasive. CPL former 60.20 (2), which was in effect at the time of trial,^[*] provided that "[a] child less than [12] years old may not testify under oath unless the court is satisfied that [the child] understands the nature of an oath." This rebuttable presumption is overcome if, after inquiry, the trial court is satisfied that "the child know[s] the difference between a lie and the truth; * * * the child know[s] the meaning of an oath; * * * the child understand[s] what can happen if [he or] she tells a lie; and * * * the child ha[s the] ability to recall and relate prior events" (People v Morales, 80 NY2d 450, 453 [1992] [internal quotation marks and citation omitted]; see People v Johnston, 273 AD2d 514, 517 [2000], lv denied 95 NY2d 935 [2000]). Here, the examination of the victim by County Court, the People and defense counsel revealed that the victim received high honors in school,...