group of police officers

ALBANY – Trial court judges are not bound to give juries an adverse inference charge when the handwritten complaint reports prepared by arresting officers go missing, the state Court of Appeals reiterated Tuesday.

The issue divided the court 4-3 in the case of one defendant, Christopher Martinez, with the majority stressing that uniform remedies should not be dictated where evidence is not turned over to defendants in violation of People v. Rosario, 9 NY2d 286 (1961). Instead, they held that judicial discretion should continue to govern.

Judge Susan Phillips Read (See Profile) wrote for the majority that “our rule is clear: nonwillful, negligent loss or destruction or Rosario material does not mandate a sanction unless the defendant establishes prejudice.”

“If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault,” Read wrote in a decision covering two cases, People v. Christopher Martinez, 13, and People v. Selbin Martinez, 14. “The focus, though, is on the need to eliminate prejudice to the defendant.”

Read said the two defendants here did not establish prejudice in either case. In fact, she wrote, the two men’s defense attorneys did not use the word “prejudice” when arguing in that Bronx Supreme Court Justice Caesar Cirigliano erred when he did not give an adverse inference charge in both cases for missing police reports commonly called “scratch 61″ reports.

She wrote that it is “difficult to imagine” how the two defendants could have been prejudiced by the loss of the reports and that the defense lawyers presented a “series of improbable events” when describing a theoretical basis for their guilty verdicts to have been different had the report been available.

Christopher Martinez involved an armed robbery of resident from an apartment building on Haverford Avenue in the Bronx by two masked assailants whom the victim identified as his neighbors. Read dismissed the possibility that the report contained a description of the gunman that did not match the victim’s description of Christopher Martinez.

“If conjecture like this, built on a foundation of fortuity, is sufficient for a showing of prejudice, the loss or destruction of Rosario material is not just presumptively prejudicial … it is per se prejudicial,” Read wrote.

She added that the Legislature has signaled through its crafting of Criminal Procedure Law §240.75 and other statutes its “antipathy” toward per se rules leading to the reversal of convictions for Rosario violations.

A dissent by Chief Judge Jonathan Lippman (See Profile) in Christopher Martinez did not take the position that an adverse inference charge is always necessary. But he argued that it often difficult for defendants to articulate a persuasive claim for prejudice over the loss of a document when they aren’t sure exactly what information was in that document.

Lippman said Read’s statement that it is “difficult” to imagine how the lost police report may have prejudiced Christopher Martinez “reflects a deficit of imagination.” Had the reports contained a description of the gunman that was different than Martinez’s own description, the prosecution’s case against him would have “crumbled,” Lippman wrote.

“Moreover, the majority’s ruling provides absolutely no incentive to retain these types of forms,” Lippman wrote. “Given the loss of the material, defendants are left to speculate as to what value that document may have held. It simply is not a satisfactory result to penalize defendant for being unable to establish a concrete injury.”

Giving an adverse inference instruction to the jury would have been an appropriate “minimal sanction” for the loss of the scratch 61 reports, Lippman said.

He was joined in his dissent in the Christopher Martinez case by Judges Sheila Abdus-Salaam (See Profile) and Jenny Rivera (See Profile).

Lippman said he would have reversed Martinez’s conviction and ordered a new trial.

The three dissenters argued that the charge should have been given in the case of Selbin Martinez as well but concurred in the verdict, saying that the evidence was overwhelming and the trial judge’s error was harmless.

Marisa Cabrera of the Center of Appellate Litigation represented Christopher Martinez. Rahul Sharma of the Office of the Appellate Defender argued for Selbin Martinez.

Assistant Bronx District Attorney Ravi Kantha represented the prosecution in both cases.

Christopher Martinez was convicted of attempted third-degree robbery and given 1 to 3 years in prison. Selbin Martinez was convicted of attempted second-degree robbery and was sentenced to 4 1/2 years in prison as a second felony offender.