People v. Austin

134 A.D.3d 559, 23 N.Y.S.3d 17

Opinions

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), rendered January 10, 2013, as amended May 30, 2013, convicting defendant, after a jury trial, of burglary in the third degree (two counts) and criminal mischief in the fourth degree, and sentencing 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 the DNA in blood evidence from the scene of the crime matched defendant’s DNA. The blood evidence itself, however, was unavailable at trial because Hurricane Sandy (which had occurred less than a month earlier) had caused the flooding of the warehouse in which the evidence was stored.¹ Contrary to defendant’s argument, the trial court did not abuse its discretion in declining his request that the jury be given an adverse inference charge based on the unavailability of the blood evidence. The Court of Appeals has held that “a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State” (People v Handy, 20 NY3d 663, 669 [2013]). Here, assuming the materiality of the physical blood evidence and that defendant had requested it with reasonable diligence, the evidence in ques tion was not 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 meteorological event beyond human control. This is not a case where evidence was inadvertently lost through the negligence of government employees or destroyed pursuant to a government policy (cf. Handy, 20 NY3d at 666 [the defendant was entitled to an adverse inference charge where video images of a jailhouse incident had been recorded over pursuant to the jail’s policy]).

We further note that the materiality of the physical blood evidence itself (as opposed to the DNA analysis thereof) is questionable, at best. It was known from the outset of the prosecution that the People’s case would be based on DNA analysis of the blood evidence found at the crime scenes. Nonetheless, beyond making standard discovery requests, defendant took no steps before the hurricane to enforce his right to production of the physical blood evidence. During voir dire, immediately after the hurricane had passed, his counsel announced in a conference call on November 1, 2012, that, having received “all the DNA files,” the defense was “ready to go.” It was only on the last day of voir dire, November 13, that defense counsel raised the issue of the People’s failure to produce the physical blood evidence. Critically, however, defendant has never expressed, either in the proceedings before Supreme Court or on appeal, any intention to conduct his own DNA analysis of the blood evidence.² Defendant asserts on appeal that the physical evidence, by itself, might have supported an argument that “the DNA results were not reliable because the DNA evidence was not carefully and properly collected and maintained.” Defendant does not explain, however, how the manner of the collection and maintenance of the physical blood evidence at the time it was tested (in 2009) might have been inferred from the appearance of the physical evidence at trial more than three years later (in 2012).

We disagree with the dissent’s characterization of the colloquy concerning discovery during voir dire as focusing on the physical blood evidence. In fact, these discussions focused on the expert reports and underlying data files on which the prosecution would be based and, contrary to the dissent, there were not “multiple court orders” specifically directing produc tion of the physical evidence.³ When voir dire began, the prosecution itself did not have all of the DNA documents (some of which apparently had not yet been completed), a circumstance of which the court emphatically disapproved. However, the court also noted with displeasure that the defense had not taken any steps to enforce its right to production of these documents during the approximately 2V2 years that had passed since defendant’s indictment in April 2010. Ultimately, the court and counsel held an on-the-record conference call on November 1, 2012 (just after the hurricane had passed), at which defense counsel stated that he had “got [ten] all the DNA files from [the prosecutor]” by email and had “already gone through everything so we are ready to go.” Again, only after the lapse of nearly two more weeks, on November 13, the last day of voir dire, did defense counsel make an issue of the physical blood evidence.

We also disagree with the dissent’s view that the loss of the physical evidence as a result of flooding caused by a natural catastrophe constitutes “los[s] by inadvertence” for which the People may be penalized by the giving of an adverse inference charge under Handy. Even if the inadvertent loss of evidence through the negligence of State employees (as opposed to deliberate destruction, as occurred in Handy) would require 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 a storage facility that was flooded as the result of a hurricane. In our view, the State cannot be 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 swabs by spilling a soft drink on them, based on the State’s placement of the storage facility at a site that turned out to be vulnerable to flooding under extreme weather conditions that rarely occur. We do not believe that this kind of exercise of a discretionary governmental function was what the Court of Appeals had in mind when it indicated that a loss of evidence resulting from “a good faith error by the State” (20 NY3d at 669) could be the basis for an adverse inference charge. Indeed, the Court of Appeals has very recently highlighted that Handy’s rationale is to “deter the authorities from affirmatively destroying evidence that they knew, at the time of the destruction, was reasonably likely to be material” (People v Durant, 26 NY3d 341, 350 [2015]; see also id. at 347 [the adverse inference charge required by Handy is “a penalty where the State . . . has destroyed existing material evidence” (emphasis added)]). In this case, 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 adverse inference instruction.

The dissent, while not going so far as to suggest that the State should be penalized for its choice of location for the storage facility, takes the position that Handy and Durant mandate an adverse inference charge based on the People’s having failed to comply with their obligation to produce the physical blood evidence before the hurricane happened to destroy it. However, the Handy adverse inference charge is a penalty for destruction of evidence, not for mere tardiness in producing it.⁴ While we do not condone the People’s slowness in fulfilling their disclosure obligations in this case, the evidence in question was not lost as a foreseeable result of the passage of time, but as a consequence of a natural catastrophe that happened to occur just before this case went to trial. Moreover, the delay in production of the evidence here appears to be as much the fault of the defense as of the People. Even though the defense always knew that the case would rely on DNA evidence, defense counsel, after making a pro forma request to which the physical blood evidence would have been responsive, never took any steps before the hurricane, over a period of approximately two years, to enforce defendant’s right to production of that evidence. As previously noted, the physical evidence did not become a focus of the discussion among the court and counsel until after the hurricane had passed.⁵

We see no support in the record for the dissent’s position that the physical blood evidence from the crime scene was somehow material to the defense. As previously discussed, while the dissent correctly notes that the match of defendant’s DNA with the DNA in the crime scene evidence was “the lynchpin of the People’s case against defendant,” placing before the jury the physical blood evidence from the crime scene would not have told them anything about the accuracy of the DNA match. Indeed, this appears to have been the original conclusion of defense counsel, who, without ever having 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 available. Nothing but speculation supports the dissent’s unlikely supposition that the appearance of the physical blood evidence at trial might have told the jury anything about “the manner of its collection, storage or handling” at the time the State analyzed its DNA, three years before trial. The condition of the physical evidence after the State conducted its analysis is irrevelant, since defendant has never expressed any interest in conducting an independent DNA analysis.

Finally, because the readily explained absence of the physical blood evidence at trial was not logically probative of the reliability of the DNA analysis on which the prosecution was based, the court’s restriction of defense counsel’s summation comments on the absence of such evidence did not constitute reversible error. In this regard, we note that defense counsel was permitted, in his summation, to attack the reliability of the chain of custody of the physical blood evidence on other grounds. Concur — Gonzalez, P.J., Friedman and Kapnick, JJ.

Footnotes

1

. Because it had been flooded by contaminated waters, the warehouse was closed as a health hazard by order of an agency of the federal government, and items stored there, even if not destroyed, could not be retrieved.

2

. Indeed, defendant’s appellate brief states: “That [defendant] had not tested the DNA [evidence] months earlier, had no impact on the defense argument that the People’s loss of the DNA evidence should be held against them at the time of trial, because the results of the tests were only a part of what the jury was asked to examine.”

3

. On the first day of voir dire (October 24, 2012), the court made a vague and ambiguous statement that the defense was entitled to receive “whatever it is that they used in making their examination and comparison of the DNA.” This may have been a reference to the physical blood evidence found at the crime scene. The court’s statement may also have been a reference to 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 for the expert’s report making the identification. In any event, it appears that the physical blood evidence did not again become the subject of on-the-record colloquy until the last day of voir dire, November 13, after the hurricane had passed.

4

. While the dissent points to 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 any disclosure violation, bearing any causal connection to the loss of evidence, necessitates an adverse inference charge as a matter of law. Notably, the statement in Durant highlighted by the dissent is followed by a citation to People v Martinez (22 NY3d 551 [2014]), in which the Court of Appeals held that, under the circumstances of that case, the trial court did not abuse its discretion in declining to give an adverse inference instruction concerning the nonwillful, negligent loss or destruction of Rosario material.

5

. We also note that the dissent’s position raises the question of what length of a delay in producing evidence before it happens to be destroyed by an unforeseeable natural disaster would warrant an adverse inference charge. The dissent offers no guidance for answering this question.