Issue before the Court: Did the trial court abuse its discretion in declining to give an adverse inference charge regarding the loss of the handwritten complaint report prepared by a police officer who responded to a 911 call reporting a robbery and where a typed copy of the handwritten report was disclosed. 

 

Held: No adverse inference charge was required.  “[N]onwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice.”  Here, since the defendants did not establish prejudice — not even mentioning the word themselves — and since it would be difficult to imagine how they might have been prejudiced given the typed copy, the court correctly ruled that the inadvertent loss was insufficient to require a sanction. 

 

CAL Observes: This unfair decision ends up penalizing the defense for a situation created by the People in faiing to satisfy their Rosario obligations and will also incentivize these types of forms going missing.  As the dissent/concurrence (reaching different results because of the differing quantums of evidence against the two defendants), sensibly points out, it is difficult for the defense to establish prejudice when the document at issue has been lost.  Some sort of conjecture will be necessary.  Judges Lippman, Rivera, and Abdus-Salaam thus chide the majority for a “deficit of imagination” in this regard and, detailing ways in which the form could have been useful in a case where identification was the central issue, would find a minimal sanction required for the lost scratch notes with respect to defendant Christopher Martinez, against whom the evidence of guilt was not overwhelming.   

 

As a practical matter going forward, the burden now clearly rests on the defense to articulate the prejudice flowing from a lost document — an exceedingly difficult task, as the dissent points out, when the document itself is missing.  We fear that any such effort will meet with limited success and that courts will more likely dismiss defense efforts as a speculative and conjectural exercise, when, of course, how could it be otherwise.