People v. Ramos

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: People v. Ramos, 538 N.Y.S.2d 327, 147 A.D.2d 718 (N.Y. App. Div. 1989)
• Decision Date: 27 February 1989
• Parties: The PEOPLE, etc., Respondent, v. Alcides RAMOS, Appellant.

Page 327

538 N.Y.S.2d 327

147 A.D.2d 718

The PEOPLE, etc., Respondent, v. Alcides RAMOS, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 27, 1989.

Elaine Price, Larchmont, for appellant.

Alcides Ramos, pro se.

Kenneth Gribetz, Dist. Atty., New City (Elizabeth O'Connor, of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered May 28, 1986, convicting him of rape in the first degree, incest, and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant argues that certain items of physical evidence should not have been admitted during trial. Admissibility of a fungible item of evidence "generally requires that all those who have handled the item 'identify it and testify to its custody and unchanged condition' " (see, People v. Connelly, 35 N.Y.2d 171, 174, 359 N.Y.S.2d 266, 316 N.E.2d 706, quoting People v Sansalone, 208 Misc. 491, 493, 146 N.Y.S.2d 359; People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310). However, deficiencies in the chain of custody go to the weight of the evidence, not its admissibility, provided that the two basic requirements of proof of identity and unchanged condition are met (see, People v. Donovan, 141 A.D.2d 835, 530 N.Y.S.2d 174; People v. Piazza, 121 A.D.2d 573, 503 N.Y.S.2d 623). In this case, the People established an uninterrupted chain of custody with respect to the "motility washing" taken from the victim on the date of the incident. The record establishes, moreover, that the emergency room nurse's initials were on the pap smear slides introduced at trial. Additionally, the pap smear was identified with the victim's name and a number, prior to analysis. Thus, the identity of the evidence and its unchanged condition was sufficiently proven, and the evidence was properly admitted.

Nor was the defendant denied a fair trial by the People's failure to preserve the semen stains on the victim's panties (see, e.g., Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281). "[T]he determination of an appropriate sanction [for failure to preserve evidence] should be made on a case-by-case basis, and an assessment should be made 'of the government's culpability for the loss, together with a realistic appraisal of its significance when viewed in light of its nature, its bearing upon critical issues in the case and the strength of the government's untainted proof' " (see, People v. Haupt, 128 A.D.2d 172, 175, 215 N.Y.S.2d 537, affd. 71 N.Y.2d 929, 528 N.Y.S.2d 808, 524 N.E.2d 129, quoting United States v. Grammatikos, 2nd Cir., 633 F.2d 1013, 1020). In the instant case the...