AD2 order dated August 26, 2015, affirming judgment of conviction. Decision below: 131 AD3d 714, 15 NYS3d 447. Fahey, J., granted leave December 15, 2015.

ISSUE PRESENTED: The trial court’s refusal to give defense an adverse inference charge with respect to a missing surveillance videotape. (Assigned counsel: Leila Hull & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issue before the Court: Whether the defense was entitled to an adverse inference charge based on the unjustifiable police destruction of a video surveillance tape of the crime scene?

 

Held: Yes, since the defense had requested production of the video in a timely fashion and the evidence was reasonably likely to be of material importance.  Under those circumstances, the instruction was mandatory, not discretionary.  However, the error was harmless given the overwhelming evidence that the defendant was the shooter.  In an opinion penned by Judge Wilson, he and Judge Stein dissented.  They agreed that there was error, but disputed that the evidence that defendant, as opposed to his look-alike brother, was the shooter, was overwhelming.  

 

CAL Observes: Once again, the new guy, Wilson, is showing he’s not shy in taking on his more experienced colleagues.  His factual analysis of the evidence is pretty convincing, enough so that Judge Stein joined him.  In another era, not that long ago, his reasoning would have carried the day.