Opinion
07-050213.
Decided June 11, 2008.
Anthony M. Giordano, Esq., Attorney for Defendant, Ossining, New York.
District Attorney of Westchester County, Att: Lauren Abinanti, Esq., Assistant District Attorney, 111 Dr. Martin Luther King, Jr. Boulevard, White Plains, New York.
On May 2, 2007, the defendant was arrested and charged with one count of Driving While Intoxicated under Vehicle and Traffic Law § 1192(3) and one count of Driving While Intoxicated under Vehicle and Traffic Law § 1192(2).
At the request of the defendant on April 7, 2008, the case was set down for a jury trial on June 30, 2008. On or about May 2, 2008, the defendant filed the present motion seeking:
Suppression of the breath test results as a sanction for the deliberate failure to preserve or the willful destruction of evidence consisting of video recordings of the defendant at both the scene of his arrestat police headquarters; and additional relief which will not be addressed in this decision.
BACKGROUND
The history of the case relevant to disclosure follows:
On June 4, 2007, the defendant was arraigned and the case was adjourned to August 15 for motions. On July 12, 2007, the defendant served discovery demands on the People, seeking, inter alia:
g) Any audio or video tapes or other electronic recordings relating to this matter whether or not the prosecutor intends to introduce such evidence at trial, irrespective of whether such recordings were made during the course of the criminal transaction, including but not limited to, any videotaping or audio-taping during the question or processing of the defendant; and
h) Anything required to be disclosed prior to trial, to the Defendant by the prosecutor, pursuant to the Constitution of this state or of the United States, including exculpatory or arguable exculpatory evidence as required under Brady v. Maryland.
(emphasis added by counsel).
In response, by letter dated July 16, 2007, the People affirmed their obligation under Brady v. Maryland, 373 U.S. 83 (1963), invited defense counsel to review the documents and records demanded at the office of the District Attorney, and did not object to any of the items sought. Defense counsel claims on this motion that
[his] efforts to review the requested documents prior to the motion date proved futile as the people did not obtain the documents; [that the] defense was compelled to file motions without reviewing the documents; [that] [e]ventually the people faxed to the defense documents on October 19, 2007, a period greater than 3 months after demands were served and more than two months after defense motions were due.
As stated in the People's affirmation in opposition to the defendant's present motion, this Court, in a decision dated October 19, 2007, granted defendant's requests for Brady and Rosario materials and suppression hearings were ordered. The results of those hearings are not germane to this motion.
Not having received the requested videos, defendant, by letter dated November 10, 2007, a copy of which is annexed to his present motion, defense counsel apprised the District Attorney's Office of his information and belief that all Town of Ossining police vehicles and most rooms at police headquarters are equipped with video cameras. The letter requested
. . . all videotapes of my client's arrest, processing and testing. If the claim is that the video cameras in the multiple vehicles present at the scene were not working, I would request specific "out of service" documents or SOP's relating to same. I would request the same for all Town cameras in the booking room where the test was given . . . It was not until April 8, 2008, in response to a letter from defense counsel, that the People acknowledged for the first time, that the cameras inside the police cars have been inoperable since 2006 and that they have never been repaired for lack of the appropriate funds to do so. It does not seem that there is documentation to that effect.
***
With respect to the video inside the building, this is only preserved if requested and any video footage that was taken prior to 90 days before today's date is not preserved. The Police Department informs me that this is simply their policy. If there was any video footage, it is no longer available in that this incident occurred in June of 2007.
ANALYSIS
The People's claim that the defense demand was untimely is not convincing, since the time to have made that objection was in its initial response and the People responded without opposing any specific request as required by CPL § 240.35. Since the People had not refused to disclose any items, the defendant was not required to move to compel compliance. Nor can the People dispute the fact that they received a demand for copies of the police video recordings in July, 2007, a time when they had ample opportunity to instruct the Police Department to preserve the recordings.
For the purposes of complying with Brady, the police and the District Attorney's office are considered one unit. To conclude otherwise would render Brady meaningless. The District Attorney, as attempted here, cannot hide behind unlawful police procedures. So-called "open file discovery" does not excuse the prosecutor from the duty to instruct the police on the constitutional requirement of retaining and providing evidence which may be exculpatory to the defendant. She cannot dispute the fact that she was an accessory to the failure of the Town of Ossining Police Department to preserve the recordings made at their headquarters, whether deliberate or inadvertent. In fact, People v. Karns, 130 Misc 2d 247,; 495 NYS2d 890 (1985), held that a prosecutor has an affirmative duty to view [a videotape of a defendant following his arrest for driving while intoxicated] and, if it is exculpatory, make it available to the defendant, even absent a request for it.
(130 Misc 2dat 250).
The failure to repair the cameras in the police cars is also troubling, given the purported explanation of "lack of the appropriate funds to do so" and the lack of "documentation to that effect" as claimed by the People in their letter of April 8, 2008. These explanations stand in sharp contrast to the meticulous five (5) page policy and operations report issued by the Town of Ossining Police Department on January 16, 2002, appended to the defendant's motion papers as Exhibit E. Although disappointing, and raising a question of misplaced priorities, these deficiencies do not rise to the level of its failure to preserve evidence obtained after the arrest that was actually in its possession.
Brady v. Maryland ( id.) did not appoint the police and the District Attorney as the final arbiters of whether or not the missing evidence is exculpatory. Because of the destruction of the failure to preserve that evidence, it must be presumed so. Following People v. Sweeney , 18 Misc 3d 1134 (2006), this Court finds that the defendant was prejudiced by the prosecution's failure to preserve recordings that would have captured virtually all of his movements and facial expressions at the police station through the completion of the chemical test and the way that test was administered. As in Sweeney, "[t]he inaction of the People, at the very least, foreclosed any objective assessment of relevant facts uniquely pertinent to the Vehicle and Traffic Law § 1192 (3) charge."( Id., at 1139).
CONCLUSION
The failure to preserve exculpatory evidence not only was prejudicial to defendant, but it violated his state and federal constitutional rights to due process and is subject to mandatory sanctions. People v. Torres, 190 AD2d 52, 54, 597 NYS2d 492 (3rd Dept. 1993); See also CPL. 240.20 [d], [g] and [h] and CPL 240.70 As in Sweeney, this Court finds that the People have failed to show that any diligent, good faith efforts were made to prevent the loss of the video recording. Instead, the people have offered a series of convoluted arguments in an attempt to excuse them of their unquestionable duty to preserve this evidence.
Accordingly this Court concludes that the People must be sanctioned, and that the only available sanction which properly fits the People's actions and/or inaction, is the suppression of the results of the defendant's chemical test. Therefore, the Court hereby grants defendant's motion to the extent of precluding the People from introducing such evidence at the trial of this case. The remaining branches of defendant's motion are declared moot.
This determination shall constitute the decision and order of the Court.