AD4 order dated April 1, 2011, affirming judgment of conviction. Decision below: 83 A.D.3d 1454, 919 N.Y.S.2d 260. Lippman, Ch. J., granted leave February 29, 2012.

ISSUES PRESENTED: (1) The trial court’s refusal to give the jury an adverse inference instruction based upon the People’s failure to preserve a videotape recording the alleged assault in question. (2) Sufficiency of the evidence of the intent to cause injury. (Assigned counsel: Timothy P. Donaher, Monroe County PD, 10 North Fitzhugh St., Rochester, N.Y. 14614.)

Issue before the Court:  The remedy to which a criminal defendant is entitled where he has acted with due diligence to demand evidence reasonably likely to be of material importance, in this case, a video surveillance tape of the area in which the alleged crime took place.

Held:  Under New York evidentiary law, a permissive adverse inference charge should be given where a defendant diligently requests evidence reasonably likely to be material and that evidence has been destroyed by State agents.  The court declined to address the constitutional due process issue presented by the loss of the evidence, but observed that the evidentiary rule announced was consistent with the principles set forth in Arizona v. Youngblood, 488 U.S. 51, which held that unless a defendant can show bad faith, failure to preserve potentially useful evidence does not constitute a denial of due process.

CAL observes: The loss of potentially helpful evidence is a particular problem for criminal defendants who under Youngblood cannot usually demonstrate the exculpatory nature of what has been lost.  The court's holding attempts to balance the interests of the State in avoiding the dismissal of criminal prosecutions while protecting the integrity of the process and individuals by imposing some sanction for the failure to preserve evidence.  Watch for People v. Christopher Martinez, leave granted December 11, 2012, which challenges the denial of an adverse charge in the Rosario context.