People v. Everett M. Durant


AD4 order dated December 27, 2013, affirming judgment of conviction. Decision below: 112 AD3d 1366,977 NYS2d 535. Pigott, J., granted leave to May 12, 2014. Argued October 20, 2015.
ISSUE PRESENTED: Whether the trial court erroneously denied defendant’s request for an adverse inference charge because the police, although capable of doing so, failed to videotape defendant’s confession. (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)


Is the trial court required to issue an adverse inference charge against the People based solely on the police’s failure to electronically record a custodial interrogation?





CAL Observes:

The Court held that neither statute nor common law requires such a charge.  The majority noted that there is no legal duty to record interrogations and thus there should be no penalty for failure to do so.  To be distinguished is the situation where the police destroy existing material evidence.  Moreover, it is not a logical conclusion that the police non-recordation was the result of a specific desire to prevent the creation of unfavorable facts, as opposed to an innocent oversight or the following of departmental policy.  The Court did issue one of its useless caveats that “the better practice would be for the police to use the equipment at their disposal to record interrogations,” and naively noted “the commendable efforts of the bar, the judiciary and the Legislature to address the complexities of this relatively new frontier of the criminal justice system.”  The Court asserts that “stakeholders in the criminal justice system and government have come together to begin addressing this critical issue,” and “[m]any bar groups, district attorneys, judicial task force members and legislators have already crafted worthy proposals” to address this issue in balanced fashion.  Of course, such legislation has been proposed for years now, and always blocked by the district attorneys, who hold sway over the State Senate.  Any  legislative compromise which gets through that Senate would be insufficiently robust to meet the exigencies of the moment, but at the same time innoculate the system against  real reform for years to come. The Court has been bamboozled into becoming cheerleaders for anemic reform.


Judge Lippman’s lone concurrence points out that things have changed since 2008, when the interrogation in question took place.  With advances in technology, the Chief Judge posits,“going forward” trial courts should give serious consideration to giving such a charge.  He also notes that top courts in other jurisdictions have required such adverse inference instructions as a part of their “supervisory authority.”  It would appear that the New York Court of Appeals has no such authority.