Opinion
CR–1834–17
03-09-2018
PEOPLE of the State of New York, Plaintiff, v. William I. LAMB, Defendant.
Brian Kremer, Corporation Counsel, Cohoes, NY for the People. Frost & Kavanagh, Troy, NY (Arthur Frost, Esq.) for the Defendant.
Brian Kremer, Corporation Counsel, Cohoes, NY for the People.
Frost & Kavanagh, Troy, NY (Arthur Frost, Esq.) for the Defendant.
Thomas Marcelle, J.In the early evening of June 16, 2016, 16–year-old Brittany Knight was crossing Interstate 787 ("I–787"), when, tragically, William Lamb hit Ms. Knight with his car and killed her. The Cohoes Police and Fire Departments scrambled to the scene. The court will note that these responding agencies did a fantastic and diligent job of attending to the victim, securing the scene and preserving the evidence—in a dark hour, they served the City well.
Originally, Lamb was charged with a crime, but subsequent to pre-trial motions, the charges were reduced to only violations of the Vehicle and Traffic Law ("VTL"). In particular, Lamb was accused of going 53 mph in a 40–mph zone in violation of VTL § 1180(d) and driving at a speed that was not reasonable and prudent in violation of VTL § 1180(a). The reduction in the charge shifted the prosecuting agency. Criminal cases are prosecuted by the Albany County District Attorney's Office; traffic violations are prosecuted by the Cohoes Corporation Counsel's Office.
In due course the matter was set down for trial. At the parties' request, a trial was held in Cohoes City Court on August 16, 2017. Written summations and post-trial motions were completed on December 22, 2017. Defendant made a number of arguments. However, one is dispositive of the case.
The People had the burden to prove that Lamb's speed exceeded 40 mph (the speed limit of I–787 at the point of the accident) or that he was driving at an unreasonable speed. No witnesses testified about Lamb's speed at the time that he struck Ms. Knight. Instead, the prosecution called an accident reconstruction expert, New York State Police Investigator Michael Altieri. Investigator Altieri had no personal knowledge of the accident. Rather, he presented a detailed scientific analysis of how he calculated Lamb's speed at the time of the collision. The calculations were pegged to the location of Ms. Knight's body and her sandal. Investigator Altieri concluded that Lamb was traveling 54 mph when he hit Ms. Knight.
Upon cross-examination, Investigator Altieri testified that had there been any change in either the location of the body or of the sandal, his conclusions would be different. He also testified that he maintained a large file that contained all his notes upon which the calculations were premised. This file was neither brought to court nor produced by the People in the course of discovery.
The seminal case of People v. Rosario , 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961) commands prosecutors to disclose to the defense any prior statements made by its witnesses—this mandate includes an expert's notes ( People v. Asaro , 21 N.Y.3d 677, 685, 976 N.Y.S.2d 10, 998 N.E.2d 810 [2013] ). Where the People fail to provide Rosario material, the court must impose sanctions and the failure to do so is an abuse of discretion ( People v. Wallace, 76 N.Y.2d 953, 955, 563 N.Y.S.2d 722, 565 N.E.2d 471 [1990] ). Determining an appropriate sanction for a Rosario violation is left to the discretion of the trial court ( People v. Martinez , 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134 [1988] ). Depending upon the degree of prosecutorial fault and the prejudice suffered by defendant, the court has three options: (1) dismiss the charges, (2) preclude the witness' testimony or (3) draw adverse inferences from the fact that the notes were not disclosed to the defendant. (see , People v. Banch , 80 N.Y.2d 610, 616, 593 N.Y.S.2d 491, 608 N.E.2d 1069 [1992] ).
Turning to the degree of prosecutorial fault, the court finds that the prosecution neither acted in bad faith nor attempted to gain an unfair tactical advantage to subvert justice by the non-disclosure. There was a switch in the prosecuting agencies and what appears to have happened is a miscommunication during a transition. The court finds no fault with either the District Attorney or the Corporation Counsel. Rather, the non-disclosure was caused by the lack of prosecutorial continuity, not the lack of prosecutorial integrity. Therefore, the court believes the sanction of dismissal is unwarranted.
"While the degree of prosecutorial fault surely may be considered, the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society" ( People v. Kelly , 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498 [1984] ). So, the question becomes the degree of prejudice suffered by the defendant because he was deprived of Investigator Altieri's notes as material for cross-examination. This case rises and falls upon the expert's testimony. The defense centered its case on casting doubt upon the reliability of Altieri's opinion. The file and its contents contain information that formed the foundational predicate of Investigator Altieri's opinion and such information goes to the heart of Lamb's ability to conduct a full and fair cross-examination. Without the notes, Lamb's ability to make his case was deeply compromised.
The court has some implicit guidance in issuing a sanction. People v. Asaro , 21 N.Y.3d 677, 976 N.Y.S.2d 10, 998 N.E.2d 810 (2013) dealt with the prosecution's failure to turn over the notes of an expert who, among other things, determined the speed of a car. The trial court gave an adverse inference charge to the jury ( Id. at 685–86, 976 N.Y.S.2d 10, 998 N.E.2d 810 ). Defendant was convicted and appealed on the grounds that the trial judge's sanction was inappropriate. The Court of Appeals found no error because defendant, at trial, did not single out that part of the expert's testimony which pertained to speed, but rather sought to strike the expert's entire testimony ( Id. ). Therefore, the Asaro Court ruled that trial judge's decision not to strike the entirety of the expert's testimony was not error ( Id. ).
The court is cautious about divining a principle of law that arises solely from an unexpressed implication of a decision. Nevertheless, it seems a proper inference, at the least for the purposes of guidance as to exercise of discretion, if the defendant in Asaro had requested the striking of the relevant portions of the expert's testimony, the Court of Appeals would have required the trial court to have stricken that portion of the testimony. Here, the preclusion of Investigator Altieri's expert opinion of Lamb's speed at the time he collided with the victim is the most fitting sanction available. Without Investigator Altieri's testimony, the record is bereft of evidence to establish defendant's speed. Thus, the court has a reasonable doubt as to defendant's guilt; the defendant is not guilty of both charges.
The foregoing constitutes the Decision and Order of the court.