People v. Spivey

• Decision Date: 12 March 1992
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Dwayne SPIVEY, Defendant-Appellant.

Page 739

581 N.Y.S.2d 739

177 A.D.2d 216

The PEOPLE of the State of New York, Respondent, v. Dwayne SPIVEY, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

March 12, 1992.

Steven A. Feldman, Hauppauge, of counsel (Feldman and Feldman, attorneys), for defendant-appellant,

Hilary Hassler, New York City, of counsel (Mark Dwyer and Patrick J. Hynes, with her on the brief; Robert M. Morgenthau, attorney), for respondent.

Before MURPHY, P.J., and SULLIVAN, ELLERIN, ROSS and KASSAL, JJ.

ROSS, Justice.

Defendant was convicted, after a jury trial, of the crimes of attempted robbery in the second degree, attempted robbery in the third degree, attempted grand larceny in the fourth degree and assault in the second degree. On this appeal defendant contends, inter alia, that: (1) the Trial Court abused its discretion when it failed to fashion an appropriate sanction for the loss of the arresting officer's memorandum book, (2) the Trial Court erred by failing to dismiss the assault count, in view of the fact that the assault in question was carried out by defendant's co-defendants after the defendant was in custody and handcuffed, and (3) the Trial Court erred by submitting a verdict sheet to the jury containing notations with respect to the theories of the various counts.

On September 25, 1989, New York City Transit Police Officers arrested the defendant, Joseph Brewer and Randolph Harris, in New York County. Thereafter, by Indictment, Number 11101, filed October 4, 1989, defendant, Brewer and Harris were charged with the crimes of robbery in the second degree (PL § 160.10) (two counts), grand larceny in the fourth degree (PL § 155.30), and assault in the second degree (PL § 120.05). Subsequently, defendant and Mr. Harris entered pleas of not guilty, and, on April 26, 1990, proceeded to a joint jury trial on the charges contained in that indictment.

The People's evidence against defendant consisted chiefly of the eyewitness testimony of New York City Transit Police Officers Angelo Carro and Stephen Schumacher, who on September 25, 1989, were assigned to the plainclothes anti-crime foot patrol in the vicinity of Sixth Avenue and 34th Street, Manhattan.

Officer Carro testified that, at approximately 1:15 p.m., just as he was entering the subway station at the corner of Sixth Avenue and 34th Street, he saw the defendant, Brewer, Harris and a fourth unidentified young man run into the station from the opposite side of Sixth Avenue. The group ran by a token booth and up the stairs past where Officer Carro was walking. According to Officer Carro, the subject group stopped on a landing heading up to the street and began arguing over a division of money. The conversation Officer Carro heard aroused his suspicions about the group. Accordingly, he decided to follow them.

As soon as Officer Carro returned to the street, he alerted his partner, Officer O'Brien. Thereafter, at the corner of Sixth Avenue and 34th Street, Officers Carro and O'Brien met Officer Schumacher, and his partner, Officer Prieto, who were also on plainclothes anti-crime foot patrol in that same area. Officer Carro pointed out the four young men, who had remained standing on the crowded street corner, to Officers Schumacher and Prieto.

Then, for approximately thirty to forty minutes the four officers followed the defendant and his three companions, as they walked around in the area bounded on the east and west by Seventh and Eighth Avenues and on the north and south by 34th and 32nd Streets.

When the group arrived at a location near the corner of 37th Street and Seventh Avenue, Officer Schumacher saw the defendant step in front of a man who was carrying a bag in each hand. The other perpetrators surrounded the man, with Harris stepping up behind him. Harris reached into the man's right pocket with his right hand, then removed it with his hand clenched. He then turned and ran towards Officer Schumacher. Although the victim yelled and attempted to pursue Harris, defendant's companion Brewer blocked the man's path. Harris, Brewer and the unidentified perpetrator then ran west towards Eighth Avenue.

According to Officer Schumacher, the defendant remained in the immediate vicinity. The officer approached, and though defendant initially resisted, successfully arrested him, with the assistance of Officer Prieto. Officer Schumacher left the now handcuffed defendant in Officer Prieto's custody, and pursued the defendant's three companions, who had fled into the subway station at Eighth Avenue.

Officer Schumacher spotted the three fleeing perpetrators through the open doors of a train waiting at the express platform. As the officer identified himself, Mr. Brewer rushed through the doorway and the two began to struggle. Then the other two perpetrators exited the train on to the platform. Brewer repeatedly struck the officer in the head and kicked him in the leg during the struggle to free himself from the officer's hold. Eventually Brewer's shirt ripped and he freed himself. Harris and Brewer fled into the subway tunnel, by jumping on to the track area. The unidentified perpetrator escaped through a street exit. Subsequently, Harris and Brewer were apprehended at 400 West 38th Street, by Officer Carro, who had responded to Officer Schumacher's radio transmission for assistance.

Neither the defendant, nor Mr. Harris, presented any evidence. The jury found defendant guilty of the crimes of attempted robbery in the second degree, attempted robbery in the third degree, assault in the second degree, and attempted grand larceny in the fourth degree. He was sentenced, as a second violent felony offender, to concurrent indeterminate terms of from three to six years on the attempted second degree robbery count, to two and one-half to five years on the assault count, to two to four years on the attempted third degree robbery count, and to one year on the larceny count.

Just prior to the commencement of the trial, it was discovered that Officer Schumacher's memo book containing his entries concerning this case was lost. Officer Schumacher had turned in the memo book in accordance with departmental procedure, but the book was lost, with approximately 24 others, while in transit to the department's storage facility. Since efforts to locate the memo book proved fruitless, the Trial Court held a hearing to reconstruct the contents of the book which pertained to this case.

At the hearing, Officer Schumacher stated that he usually made very detailed entries into his memo book, and then proceeded to testify in great detail concerning the incident. Supervisory officers testified concerning the department's procedures for receiving, transporting and storing the completed memo books turned in by officers. In addition, records were produced which showed that Officer Schumacher had properly turned in the memo book in question, but that the entire group of memo books had never arrived at the departmental storage facility. At the conclusion of the hearing, counsel for co-defendant Harris argued that the police had failed to preserve the memo book, that Schumacher's testimony was incredible because it was too detailed, and that substantial prejudice had resulted from the loss. Defendant's counsel joined in co-counsel's application for a mistrial. Alternatively, it was requested that Officer Schumacher be precluded from testifying about the contents of the memo book.

The Trial Court found Officer Schumacher's testimony to be credible and although noting that the loss was deplorable, found that Officer Schumacher was not at fault. The application for a mistrial was denied, and no sanction was imposed on the prosecution. The Trial Court's determination not to impose any sanction was apparently based on its conclusion that no prejudice to defendant resulted from the loss of the memo book, since the memo books of the other three officers involved had been produced.

Whether or not the memo book constituted Rosario material is not an issue in this case, as the People do not dispute same (People v. Wallace, 76 N.Y.2d 953, 955, 563 N.Y.S.2d 722, 565 N.E.2d 471). The rules with respect to the People's duty to preserve evidence, and the proper course of action when that duty is breached, are clear and strict. In People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134 the Court of Appeals stated;

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 NY2d 516, 520 [478 N.Y.S.2d 834, 467 N.E.2d 498]; see also, United States v Bryant, 439 F.2d 642; People v Saddy, 84 AD2d 175 . Thus, it is no answer to a demand to produce that the material has been lost or destroyed. If the People fail to exercise care to preserve it and defendant is prejudiced by their mistake, the court must impose an appropriate sanction. The determination of what is appropriate is committed to the trial court's sound discretion, and while the degree of prosecutorial fault may be considered the court's attention should focus primarily on the overriding need to eliminate prejudice to the defendant (People v Kelly, supra, at 520-521 [478 N.Y.S.2d 834, 467 N.E.2d 498].

(People v. Martinez, supra, 71 N.Y.2d at 940, 528 N.Y.S.2d 813, 524 N.E.2d 134)

While it is tacitly acknowledged that the loss of the memo book constituted a...