| People v Ruple |
| 2010 NY Slip Op 04883 [74 AD3d 1487] |
| June 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bryan L.Ruple, Appellant. |
—[*1] John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered December22, 2008 in Otsego County, (1) upon a verdict convicting defendant of the crime of burglary inthe third degree, and (2) convicting defendant upon his plea of guilty of the crime of criminalpossession of a forged instrument in the second degree.
Following a jury trial, defendant was convicted, as charged in an indictment, of burglary inthe third degree. Testimony at trial established that on Sunday, September 16, 2007, defendantand an accomplice, who testified at trial, were out walking with friends when they broke into aninsurance office building in the City of Oneonta, Otsego County, where defendant searcheddesks for money, took a desktop computer and related equipment (hereinafter collectivelyreferred to as computer) and left. The next day, the insurance company's branch manager arrivedat work and discovered her work computer was missing from her desk and contacted theOneonta Police Department. That same day, defendant sold the computer for $50 to anacquaintance, who testified at trial that—after learning that it may be stolen—hecontacted the police the following day and turned it over to them. The police notified themanager, who came to police headquarters, confirmed that the retrieved computer was the onemissing from her desk, and the police released the computer to her. While in police custody, thecomputer was photographed but was not turned on and no serial numbers were recorded from it.[*2]
Prior to trial, defendant moved pursuant to Penal Law§ 450.10 to preclude introduction of any evidence regarding the computer and to dismissthe burglary count, due to the People's failure to comply with the prior written noticerequirement allowing time for the defense to examine, test or photograph the computer prior toits release (see Penal Law § 450.10 [1]). The People conceded that Penal Law§ 450.10 had been violated, but claimed that the computer was turned over to the managerbecause it contained files necessary to the operation of the business (see Penal Law§ 450.10 [4] [a]). The People urged that preclusion was not warranted as defendantsuffered no prejudice, given that photographs of the computer had been taken by police prior toits release and the computer itself was still available for inspection, upon request, at theinsurance office.
Finding no prejudice to defendant, Supreme Court denied defendant's preclusion motion butcommitted to instructing the jury that it may consider the People's violation in determining theweight to be given this evidence (see Penal Law § 450.10 [10]). At trial, the courtso instructed the jury in its final charge and no exceptions were taken to that charge. Upon hisconviction, defendant was sentenced, as a second felony offender, to a prison term of 3½ to7 years.
On appeal, defendant's sole contention is that he was entitled to preclusion of all evidenceinvolving the computer because its release was in bad faith and caused incurable prejudice to hisdefense. By statute, when property alleged to have been stolen is in the custody of the police ordistrict attorney, it may not be released upon a request until the defense is given written notice ofthe release date and an opportunity to examine or test it (see Penal Law § 450.10[1]; People v Perkins, 56 AD3d944, 945 [2008], lv denied 12 NY3d 786 [2009]). In the event of noncompliancewhich causes prejudice to the defendant, "the court shall instruct the jury that it may considersuch failure in determining the weight to be given such evidence and may also impose any othersanction set forth in [CPL 240.70 (1)]" (Penal Law § 450.10 [10]). Unless defendantdemonstrates "undue prejudice, the court shall not preclude the district attorney from introducinginto evidence the property" (Penal Law § 450.10 [10]; see People v Kelly, 62NY2d 516, 521 [1984] ["the drastic remedy of dismissal should not be invoked where less severemeasures can rectify the harm done by the loss of evidence"]). The choice of an appropriateremedy or sanction "is committed to the sound discretion of the trial court" (People vKelly, 62 NY2d at 521), which may take into consideration "the degree of prosecutorial fault. . . , but the overriding concern must be to eliminate any prejudice to the defendantwhile protecting the interests of society" (id. at 520).
Given that the computer was photographed prior to its release, was not "irretrievably lost"but remained available for inspection and testing, and there is no evidence of bad faith, wediscern no abuse of discretion in the sanction imposed (id. at 519-521). We find that therelease of the stolen computer to the insurance business manager was simply the result of policeoversight, and that it did not warrant the imposition of a "drastic" sanction such as preclusion ordismissal of the charge (id. at 521; see People v Reyes, 27 AD3d 584, 584 [2006], lv denied 7NY3d 761 [2006]; People v Harris,23 AD3d 580, 581 [2005], lv denied 6 NY3d 813 [2006]; see also PenalLaw § 450.10 [10]).
Defense counsel was fully able to pursue, on cross-examination, the basis for the manager'sidentification of her work computer and confirmation that the photographs admitted at trialdepicted that computer, and the business content of the hard drive upon its return to her.Defendant could also have subpoenaed the business's IT employees who examined the computer[*3]upon its return, to testify regarding its contents. The evidencethat defendant stole this computer during the burglary was strong: defendant's accomplice placedhim inside the building, taking a computer; a friend outside observed him carry out the computerand take it to a house on Chestnut Street; the purchaser testified to buying the computer fromdefendant at that location; and, prior to its release, the manager identified the computer. Thus,we cannot conclude that the jury instruction sanction was an insufficient remedy (see Peoplev Perkins, 56 AD3d at 945-946).
Cardona, P.J., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.