People v Schlegel

[*1] People v Schlegel 2004 NY Slip Op 51022(U) Decided on September 20, 2004 Justice Court Of Town Of Webster, Monroe County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 20, 2004
Justice Court of Town of Webster, Monroe County

The People of the State of New York

against

Raymond L. Schlegel, Defendant.



1640-04



Aaron J. Sperrano, Esq., Assistant District for Attorney Michael C. Green, Esq., Monroe County District Attorney,

Patrick K. Russi, Esq., Faraci & Lange, LLP, Attorneys for the Defendant.

Thomas J. DiSalvo, J.

History of the Case

DiSalvo, J. The defendant was charged with Criminal Mischief in the Fourth Degree,

Penal Law Section 145.00(1) and Reckless Endangerment in the Second Degree, Penal Law

Section 120.20. It was alleged that on January 19, 2004 at approximately 1:48 A.M. the

defendant, along with a co-defendant, did drop three cans of Keystone Beer off of the Five Mile

Line Road bridge and onto the westbound lane of Route 104, and that the cans did strike the

windshield of a motor vehicle operating on said highway. It was further alleged that cans did

crack the windshield of complainant's car causing the complainant to stop the vehicle suddenly

to investigate the source of damage to his vehicle.

The defendant was arraigned on January 21, 2004, and the matter was adjourned for

appearance of counsel. On February 3, 2004, the defendant appeared in court with his attorney, [*2]

who asked for an adjournment so that he could obtain discovery. On May 5, 2004, defense

counsel returned to court, advising the court that he had just received discovery, but needed to

obtain a copy of the 911 tape generated by the complainant. On June 16, 2004 the matter was

set down for filing of omnibus motions, which were duly filed by defense counsel. At that time

the assistant district attorney advised the court and defense counsel that the tape had been

destroyed in the regular course of business by the 911 center. The matter was then set down for

argument of motions on July 21, 2004.

Defense counsel indicated in his argument that the tapes were destroyed by the 911

Center after 90 days. It was his position that the People had the burden of preserving the 911

tape, and that since it was not preserved, the People should be sanctioned. In particular the

defendant is requesting "preclusion of evidence based upon the People's failure to timely provide

a response to the Defendant's Demand for Discovery."

Facts of the Case

It is un-controverted that Defendant's Demand for Discovery was mailed to the assistant

district attorney on or about February 10, 2004. Apparently, there was no response to said

demand that was received by the defense counsel until April 27, 2004. Subsequent to receiving

the discovery package, defense counsel provided the court with a judicial subpoena duces tecum

for signature, in an attempt to obtain the said 911 tape. However, since more than 90 days had

passed since the date of the incident, the tape in question had been recycled by the 911 Center.

Issue Presented

Should the people be sanctioned, pursuant to C.P.L. 240.70(1), for failure to provide

defendant with a copy of the 911 tape due to the recycling of said tape? [*3]

Legal Analysis

A. Discovery Issues.

Defendant's discovery demand was made pursuant to C.P.L. 240.20. In particular,

C.P.L. 240.20(1)(g) requires that the defense be provided with "Any tapes or other electronic

recordings which the prosecutor intends to introduce at trial, irrespective of whether such

recording was made during the course of the criminal transaction." C.P.L. 240.70(1) gives the

court the authority to order the appropriate remedy under the circumstances. That statute allows

the court to "... order such party to permit discovery of the property not previously disclosed,

grant a continuance, issue a protective order, prohibit the introduction of certain evidence or the

calling of certain witnesses or take any other appropriate action."

In this case, where the requested 911 tape is not available, and the preclusion of a specific

piece of evidence is not requested, the trial judge must decide what constitutes "other appropriate

action", as required by C.P.L. 240.70(1). In so doing, it is important to consider the potential

for prejudice that would be suffered by the defense if the 911 tape was not provided. It is

unclear in the instant case as to what possible harm would be suffered by the defendant as a result

of not obtaining the 911 tape. Defense counsel in his motion states as follows:

"The Defendant submits that he has been unduly prejudiced by the failure of the

People to file a timely response to the Demand For Discovery because the 911 tape and

transcript has been recycled/destroyed. This tape may have been beneficial or favorable

to the defendant. However, we will never know because the tape no longer exists."

This is not enough of a proffer of evidence of prejudice to warrant the sanction requested by the

defendant, namely, the "... preclusion of all evidence recited in the Discovery Materials as a

result of the People's failure to provide a response to the Defendant's Demand For Discovery for [*4]

a period of approximately 75 Days." To grant the request of the defendant would be too harsh a

result. Lastly, because the 911 tape was destroyed, the prosecutor could not have any intention

to introduce same at trial. Thus, the broad sanction requested by the defendant would not be in

accordance with C.P.L. 240.70(1).

B. Rosario Issues.

Although the defense does not raise the issue, the failure to provide a 911 tape is a

pre-trial hearing Rosario violation.[FN1] Criminal Procedure Law Section 240.44(1) states as

follows:

"Subject to a protective order, at a pre-trial hearing held in a criminal court at which a witness is called to testify, each party, at the conclusion of the direct examination of each of its witnesses, shall, upon request of the other party, make available to that party to the extent not previously disclosed: 1. Any written or recorded statement, including any testimony before a grand jury, made by such witness other than the defendant which relates to the subject matter of the witness's testimony."

In Handling the DWI case in New York, 2003-04 Edition, Section 28:17, it states that

"... where audiotapes are destroyed despite a timely request therefor by the defense, it is generally

an abuse of discretion for the trial court to fail to impose any sanction whatsoever on the People."

However, the sanction must be in proportion to possible prejudice suffered by the defendant. In

People v. La Mountain, 249 A.D.2d 584, 585, 671 N.Y.S.2d 763, 765 (3rd Dept. 1988) the court

held that [*5] "Determination of an appropriate sanction for a Rosario violation 'is committed to the trial court's sound discretion, and while the degree of prosecutorial fault may be considered, the court's attention should focus primarily on the overriding need to eliminate prejudice to the defendant' People v Martinez, 71 NY2d 937, 940; see, People v Kelly, 62 NY2d 516, 520-521, supra). We are unable to identify any prejudice that inured to *586 defendant in consequence of the destruction of the tape, and accordingly find that the permissive adverse inference charge was an adequate sanction (see, e.g., People v Joseph, 86 NY2d 565, 572; People v Martinez, supra, at 940)."

As in that case, neither the facts herein, nor the argument of the defendant, identify any particular

prejudice suffered by the defendant, due to the destruction of the 911 tape.

Conclusion

Accordingly, the court will grant the defendant that part of its motion, which requested

a sanction against the people. However, the court will deny that portion of the motions which

requested preclusion of all evidence recited in the Discovery Materials. The sanction imposed

on the people will be that the court will allow an adverse inference charge to a jury, should the

matter be set down for a jury trial. Absent any specific and definable harm which can be pointed

to by the defense, with a reasonable degree of certainty, no additional sanction against the people

is warranted under the circumstances.

The matter is hereby restored to the general calender for disposition on October 20, 2004

at 1:00 P.M. This constitutes the decision and order of this court.

Dated: Webster, New York [*6]

September 20, 2004

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1: See People v. Rosario, (1961) 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881.