Opinion
April 10, 1990
Appeal from the Supreme Court, New York County (Edward McLaughlin, J.).
Contrary to defendant's contentions, he was not entitled to the imposition of sanctions as a result of the prosecutor's inability to turn over to the defense a missing report of a telephone conversation concerning the actions of a codefendant. A defendant is entitled to any recorded statement of a prosecution witness (CPL 240.44, 240.45 Crim. Proc.; People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866). When evidence is lost, the trial court should consider the circumstances surrounding the loss to determine an appropriate remedy or whether any corrective action need be taken at all (People v. Kelly, 62 N.Y.2d 516). Factors to be considered include the degree of negligence or bad faith on the part of law enforcement personnel, the importance of the lost evidence, and the sufficiency of other evidence adduced at trial (People v. Saddy, 84 A.D.2d 175, 179, quoting United States v Bryant, 439 F.2d 642, 653). The court must balance any prejudice to defendant with the protection of the interests of society (People v. Kelly, 62 N.Y.2d, supra, at 520). Here, the trial court was justified in imposing no sanction as there was no evidence of bad faith and there was no showing of prejudice as the conversation did not relate to defendant and a transcript of the conversation was available. (See, People v. Martinez, 71 N.Y.2d 937, 940.)
Defendant also argues that the court erred in refusing to conduct an in camera inspection of a special agent's personnel file. Such inspection must be conducted only where there is "a clear showing of facts sufficient to warrant the judge to request records for review" (Civil Rights Law § 50-a). While this standard is liberally construed, a defendant must put forth "in good faith * * * some factual predicate which would make it reasonably likely" that the file contents would "directly bear on the hard issue of guilt or innocence" and not merely constitute a fishing expedition to gain information to impeach a witness's general credibility (People v. Gissendanner, 48 N.Y.2d 543, 550). Here, there was only an unsupported allegation that disciplinary reports might exist which related to a collateral issue regarding a codefendant. Such "speculation and surmise" did not amount to a "`clear showing of facts'" justifying an in camera inspection (People v. Lugo, 93 Misc.2d 195, 200).
Concur — Kupferman, J.P., Ross, Kassal and Rubin, JJ.