134 A.D.3d 559
N.Y. App. Div.2015Background
- Defendant convicted (jury) of two counts burglary in the third degree and one count criminal mischief; aggregate sentence 7–14 years as a second felony offender; conviction affirmed.
- At scene, blood swabs were taken; later DNA testing produced a match to defendant.
- Physical blood swabs/files were unavailable at trial because Hurricane Sandy flooded the warehouse where they were stored; contaminated site closed by federal agency so items could not be retrieved.
- The People produced DNA reports/data files and the prosecution’s expert testified; defense received DNA files near trial and never sought independent testing of the physical swabs.
- Defense sought a permissive adverse inference jury charge for missing evidence and was barred from certain summation comments about the missing swabs; trial court denied the instruction and limited argument.
- Majority held no abuse of discretion: loss resulted from natural disaster (not destruction by State agents), materiality of the physical swabs was questionable, and defense had not exercised reasonable diligence to enforce production earlier.
Issues
| Issue | People’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Whether a permissive adverse-inference jury charge was required for missing physical blood evidence | No—evidence destroyed by Hurricane Sandy, not by State agents, so Handy does not require the charge | Yes—the People failed to produce ordered evidence before destruction; jury should be allowed to infer adverse significance | Denied: no abuse of discretion; Handy applies to evidence destroyed by State agents, not natural disasters |
| Whether defendant exercised reasonable diligence to obtain the physical evidence pre-destruction | People: defense did not enforce production over ~2+ years and counsel said he was “ready to go” after receiving DNA files | Defense: made discovery demands and court had ordered production; People failed to comply before destruction | Court found defense not reasonably diligent and defense delayed making production an issue until late voir dire |
| Whether the physical condition of swabs (had they been produced) was materially probative of DNA reliability | People: DNA reports/data files were the evidentiary basis; post‑analysis appearance of swabs years later would not show how samples were collected/handled in 2009 | Defense: physical swabs were the lynchpin and could allow attacks on collection/storage/handling and thus reliability | Court: materiality of the physical swabs was questionable; defendant never sought independent testing, so physical appearance unlikely to undermine DNA analysis |
| Whether restricting defense summation about the missing evidence was reversible error | People: absence of swabs explained by hurricane; limiting speculative argument about custody/whereabouts was proper | Defense: jury should assess weight of missing evidence; barring comment usurped jury role | Court: restriction not reversible error; defense could attack chain of custody on other grounds |
Key Cases Cited
- People v. Handy, 20 N.Y.3d 663 (2013) (permissive adverse-inference instruction required when defendant, with reasonable diligence, requests material evidence destroyed by State agents)
- People v. Durant, 26 N.Y.3d 341 (2015) (Handy aims to deter destruction of existing material evidence; instruction tied to destruction or disclosure violations)
- People v. Martinez, 22 N.Y.3d 551 (2014) (discusses discretion in giving adverse-inference instruction for nonwillful/negligent loss of Rosario material)
- People v. Kelly, 62 N.Y.2d 516 (1984) (government’s duty to preserve and disclose evidence relevant to the defense)