| People v Austin |
| 2015 NY Slip Op 09372 [134 AD3d 559] |
| December 22, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Peter Austin, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Marianne Stracquadanio of counsel),for respondent.
Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), renderedJanuary 10, 2013, as amended May 30, 2013, convicting defendant, after a jury trial, ofburglary in the third degree (two counts) and criminal mischief in the fourth degree, andsentencing him, as a second felony offender, to an aggregate term of 7 to 14 years,affirmed.
At trial, the People's witnesses testified that scientific testing had shown that theDNA in blood evidence from the scene of the crime matched defendant's DNA. Theblood evidence itself, however, was unavailable at trial because Hurricane Sandy (whichhad occurred less than a month earlier) had caused the flooding of the warehouse inwhich the evidence was stored.[FN1] Contrary to defendant's argument, thetrial court did not abuse its discretion in declining his request that the jury be given anadverse inference charge based on the unavailability of the blood evidence. The Court ofAppeals has held that "a permissive adverse inference charge should be given where adefendant, using reasonable diligence, has requested evidence reasonably likely to bematerial, and where that evidence has been destroyed by agents of the State" (People v Handy, 20 NY3d663, 669 [2013]). Here, assuming the materiality of the physical blood evidence andthat defendant had requested it with reasonable diligence, the evidence in question wasnot lost or destroyed by agents of the State within the meaning of Handy. Rather,the evidence was destroyed or rendered inaccessible as the result of a meteorologicalevent beyond human control. This is not a case where evidence was inadvertently lostthrough the negligence of government employees or destroyed pursuant to a governmentpolicy (cf. Handy, 20 NY3d at 666 [the defendant was entitled to an adverseinference charge where video images of a jailhouse incident had been recorded overpursuant to the jail's policy]).
We further note that the materiality of the physical blood evidence itself (as opposedto the DNA analysis thereof) is questionable, at best. It was known from the outset of theprosecution that the People's case would be based on DNA analysis of the bloodevidence found at the crime scenes. Nonetheless, beyond making standard discoveryrequests, defendant took no steps before the hurricane to enforce his right to productionof the physical blood evidence. During voir dire, immediately after the hurricane hadpassed, his counsel announced in a conference call on November 1, 2012, that, havingreceived "all the DNA files," the defense was "ready to go." It was only on the last day ofvoir dire, November 13, that defense counsel raised the issue of the People's failure toproduce the physical blood evidence. Critically, however, defendant has never expressed,either in the proceedings before Supreme Court or on appeal, any [*2]intention to conduct his own DNA analysis of the bloodevidence.[FN2]Defendant asserts on appeal that the physical evidence, by itself, might have supported anargument that "the DNA results were not reliable because the DNA evidence was notcarefully and properly collected and maintained." Defendant does not explain, however,how the manner of the collection and maintenance of the physical blood evidence at thetime it was tested (in 2009) might have been inferred from the appearance of the physicalevidence at trial more than three years later (in 2012).
We disagree with the dissent's characterization of the colloquy concerning discoveryduring voir dire as focusing on the physical blood evidence. In fact, these discussionsfocused on the expert reports and underlying data files on which the prosecution wouldbe based and, contrary to the dissent, there were not "multiple court orders" specificallydirecting production of the physical evidence.[FN3] When voir dire began, the prosecutionitself did not have all of the DNA documents (some of which apparently had not yet beencompleted), a circumstance of which the court emphatically disapproved. However, thecourt also noted with displeasure that the defense had not taken any steps to enforce itsright to production of these documents during the approximately 2
We also disagree with the dissent's view that the loss of the physical evidence as aresult of flooding caused by a natural catastrophe constitutes "los[s] by inadvertence" forwhich the People may be penalized by the giving of an adverse inference charge underHandy. Even if the inadvertent loss of evidence through the negligence of Stateemployees (as opposed to deliberate destruction, as occurred in Handy) wouldrequire the delivery of a Handy adverse inference charge, we cannot see any"inadvertence" with which the State can be charged here. The evidence was stored in astorage facility that was flooded as the result of a hurricane. In our view, the State cannotbe deemed at fault for the loss of this evidence, in the way it might be held responsible(under the principle of respondeat superior) for a state employee ruining the blood swabsby spilling a soft drink on them, based on the State's placement of the storage facility at asite that turned out to be vulnerable to flooding under extreme weather conditions thatrarely [*3]occur. We do not believe that this kind ofexercise of a discretionary governmental function was what the Court of Appeals had inmind when it indicated that a loss of evidence resulting from "a good faith error by theState" (20 NY3d at 669) could be the basis for an adverse inference charge. Indeed, theCourt of Appeals has very recently highlighted that Handy's rationale is to "deterthe authorities from affirmatively destroying evidence that they knew, at the time of thedestruction, was reasonably likely to be material" (People v Durant, 26 NY3d341, 350 [2015]; see also id. at 347 [the adverseinference charge required by Handy is "a penalty where the State. . . has destroyed existing material evidence" (emphasis added)]). In thiscase, the loss of the evidence in question did not result, either inadvertently or by design,from any conduct from which the State should be deterred by the penalty of an adverseinference instruction.
The dissent, while not going so far as to suggest that the State should be penalizedfor its choice of location for the storage facility, takes the position that Handy andDurant mandate an adverse inference charge based on the People's having failedto comply with their obligation to produce the physical blood evidence before thehurricane happened to destroy it. However, the Handy adverse inference charge isa penalty for destruction of evidence, not for mere tardiness in producing it.[FN4] While we do notcondone the People's slowness in fulfilling their disclosure obligations in this case, theevidence in question was not lost as a foreseeable result of the passage of time, but as aconsequence of a natural catastrophe that happened to occur just before this case went totrial. Moreover, the delay in production of the evidence here appears to be as much thefault of the defense as of the People. Even though the defense always knew that the casewould rely on DNA evidence, defense counsel, after making a pro forma request towhich the physical blood evidence would have been responsive, never took any stepsbefore the hurricane, over a period of approximately two years, to enforce defendant'sright to production of that evidence. As previously noted, the physical evidence did notbecome a focus of the discussion among the court and counsel until after the hurricanehad passed.[FN5]
We see no support in the record for the dissent's position that the physical bloodevidence from the crime scene was somehow material to the defense. As previouslydiscussed, while the dissent correctly notes that the match of defendant's DNA with theDNA in the crime scene evidence was "the lynchpin of the People's case againstdefendant," placing before the jury the physical blood evidence from the crime scenewould not have told them anything about the accuracy of the DNA match. Indeed, thisappears to have been the original conclusion of defense counsel, who, without everhaving had an opportunity to examine the physical evidence, announced that he was"ready to go" to trial before he learned that such evidence was no longer [*4]available. Nothing but speculation supports the dissent'sunlikely supposition that the appearance of the physical blood evidence at trial mighthave told the jury anything about "the manner of its collection, storage or handling" atthe time the State analyzed its DNA, three years before trial. The condition of thephysical evidence after the State conducted its analysis is irrelevant, since defendant hasnever expressed any interest in conducting an independent DNA analysis.
Finally, because the readily explained absence of the physical blood evidence at trialwas not logically probative of the reliability of the DNA analysis on which theprosecution was based, the court's restriction of defense counsel's summation commentson the absence of such evidence did not constitute reversible error. In this regard, wenote that defense counsel was permitted, in his summation, to attack the reliability of thechain of custody of the physical blood evidence on other grounds.Concur—Gonzalez, P.J., Friedman and Kapnick, JJ.
Gische, J., dissents in a memorandum as follows: At stake in this case is not whetherthe People proffered an acceptable explanation for the unavailability of crucial DNAevidence. The destruction of evidence as a result of post Hurricane Sandy flooding is abona fide reason for its unavailability at trial. Rather, the issue before us is whether thejury, as opposed to the judge, gets to decide what weight, if any, to assign to theunavailability of important evidence in this case. I believe that the Court of Appealsdecisions in People v Handy(20 NY3d 663 [2013]) and People v Durant (26 NY3d 341 [2015]) support a conclusion in this case that the decision regarding theweight afforded to the DNA evidence destroyed while in the People's custody andpossession, including the reasons it is no longer available, belongs to the jury, not thejudge. This is because the People were ordered to, but did not, produce this evidencebefore its destruction. The Judge, in refusing to give the requested permissive juryinstruction that the jurors could, if they wanted, draw an unfavorable inference from themissing evidence, improperly usurped for herself the juror's role in evaluating the excusegiven for the unavailability of blood samples collected by law enforcement in this case.This error was compounded when the Judge sustained her own objection to defensecounsel commenting on the missing evidence during summation. I, therefore, respectfullydissent and would reverse the conviction and remand for a new trial.
Defendant was convicted of two counts of burglary in the third degree and one countof criminal mischief in the fourth degree, stemming from a robbery of a vacant store anda dry cleaners, both of which were located in the same commercial building on East GunHill Road in the Bronx. The break ins were discovered by the owner of the dry cleaners,when he came to work at 8:00 a.m. the morning of June 30, 2009. He found his store"messed up," and that money (approximately $6,000) and a pair of sneakers weremissing. In addition, he observed that the basement door had been dented and opened.The landlord was contacted and arrived at the building shortly thereafter. She discoveredthat not only had the dry cleaning store been burglarized, but a connected vacant officehad also been broken into. She observed blood streaks on a rear door on which a glasspanel had been broken.
During the ensuing police investigation, swabs were taken of the blood observed onthe door. No usable fingerprints were found at the crime scene. Almost a year after theincident, DNA testing of the blood sample turned up a match to defendant's DNAcontained in a statewide data bank. In July 2012, the People had defendant re-swabbed,obtaining the results of that testing only two days before voir dire of the jury began.Since 2009, the People retained custody of the physical blood evidence from the crimescene, along with the original copies of the reports and other supporting evidence. Thereis some ambiguity in the People's representations about the physical location of the DNAevidence, but by the time the trial began, the evidence was being held at the NYPDKingsland Avenue Storage Facility.
There were ongoing discovery disputes, mostly centered on the People's failure toturn over any part of the DNA evidence. During a June 9, 2011 conference, the court seta deadline of June 24, 2011 for completion of all discovery. Notwithstanding the court'sorder, on October 24, 2012, when jury selection was about to begin, the People had stillnot provided any of the [*5]original DNA evidence todefense counsel, who again requested it. The Judge commented on the importance of theinformation for cross-examination purposes. Defense counsel expressly stated that hewas "entitled to more than just the reports" and the Judge agreed, stating that the defensewas "going to get whatever it is that [the ADA's] got" including whatever was used inexamining and comparing the DNA. While the overall colloquy generally concerned thePeople's failure to have provided any part of the original DNA file, it clearly andnecessarily included the failure to provide the physical blood evidence from which theDNA was obtained.
At some point the People represented that the evidence had been stored at the Erie facility. At another point the People claimed that because the lab had only completedits report on the re-swabbed DNA two days earlier, it could not provide any part of theoriginal file until it was released from the lab. The ADA represented that she had beenworking on obtaining the DNA evidence for defense counsel for the last month. By thecompletion of voir dire and with opening statements scheduled to start the next day,although defense counsel had copies of some reports, the defense still had not receivedthe DNA file with the original evidence. The People represented at that time that theyexpected to have the material from the lab no later than the next morning. The courtdirected that the trial proceed and that the DNA evidence be produced. The People werenever relieved of that obligation.
The People had still not produced the DNA file before October 29, 2012, whenHurricane Sandy made landfall in the New York City metropolitan area. Due to the Stateof Emergency that followed, the trial of this matter was interrupted. When the trialresumed, the People reported that the DNA evidence it had intended to produce waseither lost or destroyed while in a storage facility that had flooded in the hurricane andthat the storage facility had been closed by OSHA.
At trial, the People called a DNA expert to testify about the DNA testing results.Other than the DNA profile of the swabbed blood matching defendant's DNA, there wasno other evidence linking defendant to the crime scene or otherwise identifying him asthe perpetrator of the crime. There were no eyewitnesses. Although there was asurveillance video from a security camera at the scene, the nature and quality of theimage was not sufficient to identify defendant. No usable fingerprints were found at thescene. There was no confession, or indeed, any incriminating statements made bydefendant that the People were relying upon in proving its case.[FN*] The claimed missing items were neverrecovered.
The defense requested that the jury be given a permissive adverse inference charge inconnection with the missing DNA evidence. The court denied the request, based on itsown assessment that Hurricane Sandy provided a good reason for non-production ofevidence. During summation defense counsel argued to the jury: "There is no DNA at allin evidence in this case. Not one thing . . . Of course you are probably goingto hear an argument that says; well, it was destroyed by Sandy the hurricane that it and itis unfortunate . . . The problem with that is that you don't really know, and Idon't know, and they don't know, which is even scarier, where this stuff really is or whotouched it." Without objection by the prosecutor, the court sustained its own objection todefense counsel's argument about the missing DNA evidence. The prosecution was thenpermitted to state in its closing: "You also know the exact circumstances why [the DNAis] not here. Because, unfortunately, our city suffered-forget about our city, our state andthe whole eastern seaboard got to meet Hurricane Sandy, and Hurricane Sandy, as youheard from Sergeant Apuzzi who is the head of the Kingsland Facility . . .also flooded the current facility that is holding these items and we cannot bring them herefor you because a federal agency closed it as toxic."
In the first instance, I disagree with the majority to the extent it questions themateriality of the physical blood evidence. The only evidence connecting defendant tothe crimes of which he was convicted was the blood evidence found at the scene. Theaccuracy of the DNA match analysis was not just material, it was crucial and the lynchpinof the People's case against defendant. Defense counsel was entitled to physicallyexamine that evidence and decide whether [*6]basedupon the manner of its collection, storage or handling, there was any basis to makearguments to the jury discrediting the conclusions reached by the lab that analyzed it. Thefact that defense counsel never sought independent testing of the blood did not lessen itsmateriality or importance for production at trial. Since the evidence was never produced,and its qualitative condition is unknown, we cannot know what impact the condition ofthe physical evidence may have had on the jury's decision to credit the conclusionsreached by the People's expert.
The jury instruction requested by defense counsel would have allowed the jury toconsider the unavailability of the blood samples and make its own evaluation of theweight to be afforded to the People's DNA expert. The jury would have further beeninstructed that the law permits them, but does not require them, to infer, if they believe itwas proper to do so, that had the evidence been preserved its contents would not supportor would be inconsistent with the witness' testimony on this issue.
In People v Handy (20NY3d 663 [2013], supra), the Court of Appeals held that, under New Yorklaw of evidence, a permissive adverse inference charge must be given where a defendant,using reasonable diligence, has requested evidence reasonably likely to be material, andwhere the evidence has been destroyed by agents of the State. In Handy, apermissive adverse inference charge was required where the State had destroyed materialevidence in its possession, consisting of a video recording that defense counsel hadrequested (20 NY3d at 667-669). The Court held that even if the destruction wasinadvertent, the instruction was still required. In the very recent case of People vDurant (26 NY3d 341 [2015], supra) the Courtof Appeals once again examined the issue of when a permissive adverse inferenceinstruction is required. Recognizing that the instruction typically serves as either "(1) apenalty for the government's violation of its statutory and constitutional duties or itsdestruction of material evidence; or (2) an explanation of logical inferences that may bedrawn regarding the government's motives for failing to present certain evidence at trial,"the court declined to hold that such an instruction was required where the police couldhave, but failed to, electronically record a custodial interrogation of the defendant(Durant, 26 NY3d at &mdash, 2015 NY Slip Op 08609, *4). In part, the Court'sholding was based upon the fact that the government had no legal duty to make anelectronic recording of an interrogation. The Court recognized, however, that theinstruction should be given where the government has destroyed existing materialevidence in its possession, or "where the State violates its disclosure obligations"(Durant, 26 NY3d at 347).
Here, the DNA evidence was indisputably within the People's custody and controlsince the inception of the investigation of the crime scene. There is no dispute that thePeople had a legal duty to preserve and also to disclose such evidence (People vKelly, 62 NY2d 516, 519-520 [1984]). While the People did not physically destroythe evidence, they did violate their duty to disclose the evidence before it was destroyed.We know that the DNA file was not produced before trial, despite multiple court ordersrequiring its production before it was destroyed. By at least the beginning of voir dire,the court's direction that defense counsel was entitled to everything the People had in itspossession to reach the conclusion of the DNA match, required that the blood samplesneeded to be turned over. Had the People produced the blood samples when ordered todo so, or even when they represented they would do so, there would be no issues relatedto their destruction.
I acknowledge that defense counsel could have been more diligent in pursuing theproduction of this evidence, especially given the court's order requiring discovery to becomplete in June 2011. In fact, the trial Judge admonished counsel for not acting sooner.But the standard under Handy is not whether defense counsel could have beenmore diligent in seeking the discovery, but rather whether counsel was reasonablydiligent. Defense counsel in this case made a discovery demand before trial for the DNAfile, at a time when the People could and should have easily produced it. I believe thisaspect of Handy has been satisfied. The evidence was indisputably destroyedwhile in the People's custody and control. The People were directed to produce it, butfailed to do so when they could, i.e., before it was destroyed. The majority claims thatbecause the evidence was destroyed by Hurricane Sandy, an act of God, it was notdestroyed by agents of the State, and, therefore, Handy does not apply. I believethat the majority is reading [*7]the phrase "agent of theState" as referenced in Handy far too narrowly. In deciding Handy, theCourt of Appeals makes it abundantly clear that the instruction should be given evenwhere destruction of evidence is not deliberate or done in bad faith (Handy at669). The Court stated: "Our rule is unlikely . . . to increase greatly the riskthat a good faith error by the State will lead to a guilty defendant's acquittal. We holdonly that the jury should be told it may draw an inference in defendant's favor.This instruction . . . could be labeled a 'missing evidence'instruction—not unlike the 'missing witness' instruction given when a party fails tocall a witness who is under that party's control and might be expected to give favorabletestimony. The instruction 'neither establishes a legal presumption nor furnishessubstantive proof' " (id. at 669-670 [citations omitted]).
Evidence lost through inadvertence does not excuse a loss. Additionally, underDurant, where evidence that should have been, but was not, produced duringdiscovery is now unavailable, the instruction is necessary to eliminate the prejudice to thedefendant (see People v Martinez, 71 NY2d 937, 940 [1988]; People vHaupt, 71 NY2d 929 [1988]). Because the instruction is a permissive one, the jurywould have been free to draw its own conclusions about the effect Hurricane Sandy hadon the unavailability of the DNA evidence.
Footnote 1:Because it had beenflooded by contaminated waters, the warehouse was closed as a health hazard by order ofan agency of the federal government, and items stored there, even if not destroyed, couldnot be retrieved.
Footnote 2:Indeed, defendant'sappellate brief states: "That [defendant] had not tested the DNA [evidence] monthsearlier, had no impact on the defense argument that the People's loss of the DNAevidence should be held against them at the time of trial, because the results of the testswere only a part of what the jury was asked to examine."
Footnote 3:On the first day of voirdire (October 24, 2012), the court made a vague and ambiguous statement that thedefense was entitled to receive "whatever it is that they used in making their examinationand comparison of the DNA." This may have been a reference to the physical bloodevidence found at the crime scene. The court's statement may also have been a referenceto files containing the raw DNA data from the crime scene evidence and from defendant,which were compared to identify defendant as the perpetrator and provided the basis forthe expert's report making the identification. In any event, it appears that the physicalblood evidence did not again become the subject of on-the-record colloquy until the lastday of voir dire, November 13, after the hurricane had passed.
Footnote 4:While the dissent pointsto a statement in Durant that "where the State violates its disclosure obligations,an adverse inference charge . . . [is] authorized" (26 NY3d 341, 347 [2015]), this dictum does not mean that anydisclosure violation, bearing any causal connection to the loss of evidence, necessitatesan adverse inference charge as a matter of law. Notably, the statement in Duranthighlighted by the dissent is followed by a citation to People v Martinez (22 NY3d 551 [2014]), in which theCourt of Appeals held that, under the circumstances of that case, the trial court did notabuse its discretion in declining to give an adverse inference instruction concerning thenonwillful, negligent loss or destruction of Rosario material.
Footnote 5:We also note that thedissent's position raises the question of what length of a delay in producing evidencebefore it happens to be destroyed by an unforeseeable natural disaster would warrant anadverse inference charge. The dissent offers no guidance for answering this question.
Footnote *:Defendant's onlystatements were apparently exculpating.