Opinion
No. 2011–1280 K CR.
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Andre JONES, Appellant.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Gilbert C. Hong, J.), rendered March 23, 2011. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree and harassment in the second degree.
ORDERED that the judgment of conviction is affirmed.
The People charged defendant in an amended information with attempted assault in the third degree (Penal Law §§ 110.00, 120.001 ), menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.261 ). The information alleged that, following a verbal altercation between defendant and two Marine Corps recruiting officers at the Broadway Junction subway station, a violent physical encounter ensued on an escalator connecting two mezzanine levels when defendant kicked one of the recruiters in the head, knocking him backwards down the stairs and causing a variety of injuries. Defendant insisted that videotapes of the incident taken by surveillance cameras at several locations within the subway station would exonerate him by demonstrating that he had acted in self-defense against the recruiting officer, the initial aggressor. Inquiries by the People revealed that the cameras are maintained by the Metropolitan Transportation Authority (MTA), and that, by normal operation, video footage recorded by the cameras is overwritten within days.
At a pretrial suppression hearing, the arresting officer, a member of the Transit Bureau of the New York City Police Department (N.Y.PD), testified that, immediately after the incident, she had reviewed video recordings by two of the cameras and determined that they had captured nothing of the incident, as neither of them were trained on the escalator. She further testified that there were no other cameras aimed at the escalator. She made no effort to acquire the videotapes or to preserve them from being overwritten. After a nonjury trial, defendant was acquitted of menacing in the third degree and convicted of the remaining counts. On appeal, defendant alleges that the prosecution's failure to acquire and preserve the surveillance camera recordings violated his rights pursuant to Brady v. Maryland (373 U.S. 83 1963 ) and merits the sanction of dismissal of the charges.
“To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” (People v. Fuentes, 12 NY3d 259, 263 2009 ). The People “have an affirmative obligation to preserve all discoverable evidence within their possession” (People v. James, 93 N.Y.2d 620, 624 1999 ) and “may be charged with knowledge of exculpatory evidence in the possession of local police notwithstanding the trial prosecutor's own lack of knowledge' “ (People v. Messina, 43 Misc.3d 78, 83 [App Term, 9th & 10th Jud Dists 2014], quoting People v. Santorelli, 95 N.Y.2d 412, 421 2000; see also People v. Kelly, 62 N.Y.2d 516, 520 1984 [preservation and disclosure of Brady material is the duty of “the prosecution or its agent”] ). However, the police have no “affirmative duty ... to obtain potentially exculpatory evidence for the benefit of a criminal defendant” (People v. Hayes, 17 NY3d 46, 51 2011, citing People v. Alvarez, 70 N.Y.2d 375, 381 1987 ) from a party who is not considered to be under the prosecutor's control, even where the evidence is videotape that is “theoretically within the grasp of the police, who could have acted to preserve it before [it was] overwritten” (Messina, 43 Misc.3d at 83–84). Thus, unless the evidence was ever “within the possession, custody, or control” of the prosecution or its agent (People v. Hearns, 33 AD3d 722, 722 2006 ), there is no Brady violation (see People v. James, 93 N.Y.2d at 644[a Brady violation occurs only when such evidence “already committed to the ... custody” of the police or their agent is lost or destroyed).
First, defendant has failed to establish that the Broadway Junction subway station videotapes were within the possession, custody or control of the prosecution or its agent. While the subway system is patrolled by officers of the NYPD's Transit Bureau, the prosecutor asserts that the surveillance system is installed and maintained by the MTA, which is “a public service corporation created for the purpose of developing and improving commuter transportation and other services related thereto” (People v. Mattocks, 51 AD3d 301, 303 n. 1 2008, affd 12 NY3d 326 2009 ). Consequently, unless they are the arresting authority, MTA personnel, including the members of its police agency, are not the People's agents who bear an obligation to preserve Brady evidence. Indeed, the prosecutor also stated that the police can only compel access to the videotape system by subpoena. The fact that an NYPD officer, an undisputed agent of the People, reviewed certain of the recordings did not thereby render the tapes constructively possessed by the People, as “(t)emporary access is not necessarily the equivalent of possession for Brady purposes” (People v. Walloe, 88 AD3d 544, 544 2011; see also People v. Turner, 118 AD3d 463, 463 2014; People v. Hernandez, 107 AD3d 504, 505 2013; Matter of Demitrus B., 89 AD3d 1421, 1422 2011 ).
Even were we to assume, for the sake of argument, that the videotapes were within the possession and control of an agent of the People within the meaning of the Brady obligation, the defendant must still establish prejudice from the loss, that is, that the content of the lost tapes was “reasonably likely to be material” (People v. Handy, 20 NY3d 663, 669 2013 ) and that there was a reasonable possibility, had the tapes been available to the defense, that defendant would not have been convicted (People v. Vilardi, 76 N.Y.2d 67, 78 1990 ). In this analysis, the arresting officer's testimony is relevant to the determination of whether the evidence “possesse[d] an exculpatory value evident before its destruction, loss, or failure to preserve” (People v. Jardin, 88 N.Y.2d, 956, 958 1996 ). Against the officer's testimony that none of the cameras captured the incident, which was strengthened by the fact that she had reviewed certain of the footage recorded at the time of the incident (see People v. Williams, 38 Misc.3d 4, 7 [App Term, 2d, 11th & 13th Jud Dists 2012] ), defendant offered only the conclusory allegation that at least one of the cameras must have recorded the incident, and therefore failed to meet his burden to establish the materiality of the potential evidence (Jardin, 88 N.Y.2d at 958). Certainly, insofar as the absence of bad faith is relevant in this analysis, “since there was no showing of bad faith or that the videotape ... would have been beneficial to defendant” (People v. Brock, 246 A.D.2d 406, 406 1998 ), it cannot be said that defendant was prejudiced thereby (cf. People v.. Vilardi, 76 N.Y.2d at 77–78 [new trial ordered because there was at least a reasonable possibility that, had the exculpatory evidence been available to the defendant, he would not have been convicted] ).
Accordingly, the judgment of conviction is affirmed.
ELLIOT, J.P., PESCE and SOLOMON, JJ., concur.