Opinion
August 8, 1994
Appeal from the Supreme Court, Kings County (Demarest, J.).
Ordered that the appeal from the oral decision is dismissed as no appeal lies from a decision, and it is further,
Ordered that the order is affirmed.
This People's appeal arises from the suppression of evidence by the hearing court based on the conclusion that the police did not have probable cause to arrest the defendants. The hearing court also struck the hearing testimony of one of the arresting officers because the People failed to preserve tapes of radio transmissions by that officer relating to the events leading up to the defendants' arrest.
The testimony of three officers who were at the scene of the defendants' arrest on March 6, 1992, established that the arresting officers followed the defendants' vehicle, a Toyota, when they observed that the trunk lock was missing, that the door locks were damaged, and that there was a fork stuck in the steering column where the ignition was located. However, when one of the officers radioed the license number of the Toyota to the central dispatcher, he received notification that the vehicle had not been reported as stolen. Moreover, the evidence indicates that the driver of the Toyota did not commit any traffic violations during the time that the officers followed the vehicle. Nevertheless, the officer requested immediate backup, stopped the Toyota with the help of several other police cars, and arrested the defendants, one of whom attempted to flee. One of the arresting officers never spoke to any of the defendants before arresting them, and the other claims to have requested documentation regarding the ownership of the vehicle, however, he could not recall whom he had asked, and there is conflicting testimony as to which side of the vehicle he first approached.
Contrary to the People's contention, the evidence adduced at the hearing established that while the police officers had reasonable suspicion to stop the defendants, based upon their observations of the vehicle's condition, the defendants' subsequent arrest for possession of a stolen vehicle was not reasonably related in scope and intensity to the circumstances to render the officers' actions permissible (see, People v. Torres, 74 N.Y.2d 224, 230). When the officers first observed the defendants, they were acting lawfully and the vehicle had not been reported stolen, therefore, the officers did not have probable cause to arrest the defendants before they had determined with more certainty that the defendants were committing, had committed, or were about to commit a crime (see, People v. De Bour, 40 N.Y.2d 210; People v. Cantor, 36 N.Y.2d 106, 112-113; People v. Elam, 179 A.D.2d 229, 230).
Further, the People's contention that the hearing court abused its discretion by striking the hearing testimony of arresting Officer McMullen is without merit. The People have an obligation to preserve evidence until a request for disclosure is made. Thus where Rosario material has been destroyed, despite a timely subpoena, and the defendant is prejudiced by the mistake, the court must impose an appropriate sanction (see, People v Wallace, 76 N.Y.2d 953, 955). The People failed to make any effort to preserve audiotapes of the radio transmissions between Officer McMullen and police headquarters, even though the defense counsel had made timely requests for such evidence, and the People were aware that such audiotapes were routinely destroyed by the police department after having been stored for 90 days. The defendants were prejudiced by the loss of this evidence, since it was likely that the audiotapes would have clarified the many ambiguities caused by Officer McMullen's inability to recall the circumstances surrounding the defendants' arrest. Thus, the hearing court did not improvidently exercise its discretion by striking the testimony which was directly related to the destroyed audiotapes (see, People v. Banch, 80 N.Y.2d 610, 621; see also, People v. Martinez, 71 N.Y.2d 937). Thompson, J.P., Balletta, Krausman and Florio, JJ., concur.