Opinion
2006-11 N CR.
Decided February 26, 2008.
Appeal from a judgment of the District Court of Nassau County, First District (Francis Ricigliano, J.), rendered December 5, 2005. The judgment convicted defendant, upon a jury verdict, of petit larceny, resisting arrest, and attempted assault in the third degree.
Judgment of conviction affirmed.
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
Shortly after 11:00 P.M. on January 29, 2005, three police officers observed defendant approach the complainant, strike him at least once, force him to the ground and place his hands in complainant's pockets. The attack occurred 10 feet from where the officers were sitting, in an unmarked police vehicle, and while defendant and complainant were illuminated by a nearby streetlight. Upon observing the incident, the officers left their vehicle, identified themselves as police, and attempted to arrest defendant. Defendant threw the victim's keys at the nearest officer, attempted to pull away, and pushed the officers. By the combined efforts of the officers, defendant was eventually wrestled to the ground and handcuffed. A $20 bill which, the victim testified, had been taken from him, was found in defendant's hand and an additional $23 in paper currency was found scattered on the ground.
At the trial, which followed a grand jury presentment after which defendant was charged with three misdemeanors, the People disclosed that the keys and currency had been recorded, photographed, and returned to the victim at the victim's request, shortly after the incident, and that one of the three officers involved in the arrest had recently undergone surgery, was on administrative leave, and would not be available to testify at the trial. The defense contends that as a penalty for the failure to preserve evidence (Penal Law § 450.10), the court should have precluded the People from introducing evidence of the keys and currency rather than the lesser sanction actually adopted, an adverse inference charge, and that the court should have issued a missing witness charge with respect to the non-testifying officer. We disagree and affirm the judgment of conviction.
CPL 240.20 (1) imposes on the police the "affirmative obligation to preserve all discoverable evidence within their possession" ( People v Hernandez, 285 AD2d 559, 559, citing People v James, 93 NY2d 620, 644) and to "disclose to the defendant and make available for inspection" such evidence (CPL 240.20), which includes "[a]ny . . . property obtained from the defendant" (CPL 240.20 [f]). The People do not deny that the keys and currency were "discoverable." Where, as here, the People readily admit that "a law enforcement officer acting within the scope of his. . .official duties" neglected his "affirmative obligation" to preserve evidence "already committed to [his] custody," the court must "exercise discretion in choosing an appropriate sanction" ( People v James, 93 NY2d at 644). While "the degree of prosecutorial fault . . . 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 NY2d 516, 520).
As to the prong relating to prosecutorial fault, the lesser of the two considerations underlying the sanction determination, courts have tended to examine prosecutorial conduct from the perspective of whether the violation was "intentional" or in "bad faith" ( e.g. People v McDowell, 264 AD2d 858; People v Scalzo, 178 AD2d 444; People v Borders, 163 AD2d 852). While the violation in this case was "intentional" in the ordinary sense of the word, in the numerous cases dealing with the immediate return of stolen property to complainants, in contexts where it is clear that the complainant had a compelling need for the property, the courts nearly uniformly hold that since the property's return was without indicia of bad faith, the failure to exclude proof of same, and even to deny an adverse inference instruction in relation thereto, has been deemed no error at all, in the absence of proof of prejudice to the defense ( e.g. People v Reyes , 27 AD3d 584 ; People v McDowell, 264 AD2d 858, supra; People v Smith, 242 AD2d 487; People v Woodberry, 239 AD2d 448, 449; People v Graham, 186 AD2d 47, 48). Here, the evidence established that the victim, a factory worker who was robbed on his payday, lost a part of that pay and the keys he needed to get into his home in the middle of a snowy January night. The determination by the officers to photograph the evidence and to release it to the victim, while "intentional," was made in good faith.
The question then turns to whether the loss prejudiced the defendant. As a preliminary matter, we note that Penal Law § 450.10 (1) provides a mechanism for the return of stolen property where the request for same is made "prior to or during the criminal proceeding." This section bars the property's return absent compliance with several provisions thereof, including notice to the defense and the opportunity for the defense to examine, test, photograph or otherwise reproduce said property. It is noted that a consideration for the release of property, assuming the procedural requirements are satisfied, is "the health or welfare of any person" (Penal Law § 450.10). To avoid all sanctions, it is for the prosecutor to demonstrate "to the satisfaction of the court that such failure has not caused the defendant prejudice" (Penal Law § 450.10 [10 ]), and as the People herein failed to do so, the court properly "instruct[ed] the jury that it may consider such failure in determining the weight to be given such evidence" ( id.; see also CPL 240.70). However, we are satisfied that the court properly declined to impose the greater sanction of preclusion, upon defendant's failure to establish prejudice.
In a proper exercise of discretion, the court declined to issue a missing witness charge as to Police Officer Horowitz. Such a charge is appropriate only where it is established that an available non-testifying witness, under the prosecution's control, would have been expected to give testimony as to noncumulative matters favorable to the prosecution ( People v Gonzalez, 68 NY2d 424, 427). Two of the three officers who witnessed the criminal incident and participated in the arrest testified that the third officer had recently undergone surgery and was on administrative leave. A material witness' surgery and rehabilitation is an adequate excuse where the People make "a sufficient showing" thereof ( People v Turner, 294 AD2d 192). However, we need not determine whether, as defendant contends, the People's proof was adequate to account for the officer's absence, since the absence may be excused upon a showing that the officer's testimony would have been cumulative to evidence already submitted at trial ( e.g. People v Lubrano , 43 AD3d 829 ; People v Sims, 226 AD2d 564, 565). That proof, of an incident that was brief and uncomplicated, and observed in its entirety by all three officers who, in turn, collectively participated in the arrest, provides no basis for an inference that the third officer's testimony would have materially deviated from the testimony already adduced. Moreover, the trial court reviewed the absent witness' grand jury testimony and determined that it would be cumulative. Such a review is a proper basis upon which to infer that the witness' subsequent testimony would be cumulative ( e.g. People v Jordan , 18 AD3d 329, 330). We note that "there is no duty on the prosecutor to call at trial every witness to a crime" ( People v Stridiron, 33 NY2d 287, 292; e.g. People v Buckler, 39 NY2d 895, 897; People v Rodriguez, 275 AD2d 725; People v Ramos, 159 AD2d 596).
We find the proof of defendant's guilt of the offenses legally sufficient to support the convictions ( People v Contes, 60 NY2d 620) and that the verdicts in relation thereto were not against the weight of the evidence ( People v Danielson , 9 NY3d 342 ; People v Romero , 7 NY3d 633 ; People v Bleakley, 69 NY2d 490).
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.