The Third Department allows a "police oversight" to overcome preclusion

Recently, in People v. Ruple (3d Dept. 6/10/2010), the defendant was convicted of Burglary 2º after taking a desktop computer from an insurance office and selling it to an acquaintance who contacted the police and turned it in. Subsequently, the computer was turned over to the manager of the insurance business. Defendant moved to preclude evidence based on the People's failure to comply Penal Law § 450.10, which requires prior written notice to the defense before releasing seized property back to its rightful owner.  The People maintained that even though the written notice requirement was violated, the computer was turned over the to the manager because it contained files necessary to run a business. As such, it was still available for inspection at the insurance company and the defendant suffered no prejudice.  The trial court agreed, denying the defendant's preclusion request but issuing an adverse inference instruction to the jury.

According to People v. Perkins, in the event of noncompliance which causes prejudice to the defendant, the court must instruct the jury that it may consider the failure in determining the weight to be given such evidence. Unless a defendant demonstrates undue prejudice, the court will not preclude the introduction of evidence. And, according to People v. Kelly, dismissal should not be used where less drastic measure can rectify the harm done by the loss of evidence. And, this decision lies in the discretion of the trial court.

The Court of Appeals affirmed the defendant's conviction, finding the jury charge sufficient to ameliorate any prejudice. Because the return of the property to the manager was merely a "police oversight," the court did not - rather, "could not" - conclude that the jury instruction sanction was an insufficient remedy.  The court also noted a number of other remedies that the defense could have pursued, including subpoenaing the insurance company's IT employees to testify about the contents of the computer upon its return as well as cross examining the testifying manager's identification of the computer.  (RB/LC)

Comments

[Roger Brazill]

The cited case, People v Ruple, is an Appellate Division, Third Department decision, not a Court of Appeals decision.
(74 AD3d 1487 [3d Dept 2010])