Opinion
570051/17
01-21-2022
The PEOPLE of the State of New York, Respondent, v. Willie STOKES, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Julio Rodriguez III, J.), rendered January 13, 2017, affirmed.
The court properly denied defendant's application for an in camera review of the victim's psychiatric records, which "are to be disclosed only when their confidentiality is significantly outweighed by the interests of justice" ( People v Duran , 276 AD2d 498 [2000] [internal quotation marks omitted]). Defendant failed to make an adequate showing that the psychiatric records "might contain material bearing on the reliability and accuracy of the witness's testimony" ( People v Duwe , 164 AD3d 1256, 1257 [2018], lv denied 32 NY3d 1110 [2018] [internal quotation marks omitted]). To the extent that the victim's anxiety disorders and use of medications at different times was relevant, defendant was able to elicit these matters on cross examination (see People v Ouanes , 123 AD3d 480 [2014], lv denied 25 NY3d 1075 [2015] ). In addition, there was no showing that she had a history of hallucinations, delusions or false claims of assault (see People v Duran , 276 AD2d at 498 ).
The court providently exercised its discretion in declining to provide an adverse inference instruction based on the People's failure to produce the memo books and other notes of the responding officers who spoke to the victim at the hospital. The record does not demonstrate a "factual basis" that the officer had written the victim's statements in his memo book or on any documents other than the "scratch 61" complaint report or domestic incident report [DIR] ( People v Young , 61 AD3d 786 [2009], lv denied 13 NY3d 751 [2009] ; see People v Ligon , 66 AD3d 516, 517 [2009], lv denied 14 NY3d 889 [2010] ; People v Pines , 298 AD2d 179, 180 [2002], lv denied 99 NY2d 562 [2002] ). In any event, even assuming such material existed, "nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice" ( People v Martinez , 22 NY3d 551, 567 [2014] ). Here, defendant depends on a series of improbable events to create the prospect of prejudice, which is insufficient to warrant a sanction ( id. at 567-568 ).
Defendant also failed to demonstrate that he suffered any prejudice from the delay in disclosure of certain evidence, including the prosecutor's late disclosure of the complainant's criminal history and subsequent refusal to correct purportedly misleading testimony. The prosecutor explained the unintentional delay in producing the victim's criminal record and the material was available for use at trial upon its disclosure and was, in fact, used by the defendant during cross-examination (see People v Jingzhi Li , 104 AD3d 704, 705 [2013], lv denied 21 NY3d 1005 [2013] ; see also People v Smalls , 145 AD3d 802 [2016], lv denied 29 NY3d 952 [2017] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur