People v. WagstaffPeople v. Wagstaff
— Appeal from an order of the County Court of St. Lawrence County (Duskas, J.), entered March 6, 1984, which granted defendants’ motions to suppress evidence and dismiss the indictment.
On July 18, 1983, the St. Lawrence County Sheriff’s Department (department) seized vegetative matter which was then sent to the State Police laboratory for analysis. After the vegetative matter was determined to be marihuana weighing approximately I6V2 pounds, it was returned to the department for storage as evidence. Defendants, who had been arrested at the time the vegetative matter was seized, were ultimately indicted in November, 1983 for criminal possession of marihuana in the first degree (Penal Law, § 221.30) and growing of a plant known as cannabis by unlicensed persons (Public Health Law, § 3382). Defendants sought, as part of their omnibus motion, an order to examine the alleged marihuana; County Court granted their request. The St. Lawrence County District Attorney then informed defendants that the vegetative matter had been destroyed but that the State Police laboratory report was available for inspection.
Defendants moved to suppress any information concerning the destroyed evidence and to dismiss the indictment on the ground that they were prejudiced by not being able to analyze the vegetative matter so as to refute its character and weight. A
The People are obligated to preserve evidence and where discoverable evidence gathered by the prosecution or its agents is lost, the People have a heavy burden of establishing that diligent, good-faith efforts were made to prevent the loss (see, e.g., People v Kelly,
In People v Kelly (supra, p 520), the Court of Appeals recently made clear that: “In fashioning an ‘appropriate’ response to the prosecutor’s wrongful failure to preserve evidence (see CPL 240.70, subd 1), the degree of prosecutorial fault surely may be considered, but the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society.” Furthermore, the Court of Appeals stated, “as a general matter the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence” (id., at p 521). Defendants claim that dismissal was warranted in this case because the destruction of the vegetative matter deprived them of the opportunity to analyze it, thereby preventing the possibility of refuting that the evidence was marihuana or was less than 10 pounds, so as to reduce the charge, and of effectively cross-examining the State Police chemist who did the analysis. We have recently observed that “the best potentially exculpatory evidence to impugn the chemist’s opinion was the tested substances themselves” (People v De Zimm,
We are not persuaded contrarily by those cases in which drug convictions have been upheld where evidence was destroyed but a police chemist who had analyzed the evidence testified that the evidence was, in fact, drugs (see, e.g., People v Hentschel,
This determination, however, does not require the indictment to be dismissed. County Court denied a motion to suppress an inculpatory statement by defendant William Wagstaff and, from this statement, it appears that if there is other sufficient corroboration (CPL 60.50; see People v Lipsky,
Order modified, on the law, by reversing so much thereof as dismissed the indictment, indictment reinstated, and the matter
Notes
The facts surrounding the utterance of defendant Wagstaff’s inculpatory statement are not revealed in the record and, thus, we are unable to determine how this statement may reflect on the guilt or innocence of defendant John De Shane.