Case Detail
CitationPeople v. Deery, 630 N.Y.S.2d 193 (N.Y. Crim. Ct. 1995)
CrimeSex crimes
StateNY
Pros. First NameUKN
Pros. Last NameUKN
FederalNo
Trial Year1995
BodyTrial court
OpinionThe New York Criminal Court, Bronx County, held that the people's failure to produce a tape of the complainant's 911 telephone call to the police warranted preclusion of the complainant's testimony. "Here, an adverse inference charge would not be sufficient to redress the harm caused by the erasure of the 911 tape. Preclusion of the testimony of the complainant is appropriate, given the degree of prejudice to defendant and the degree of prosecutorial misconduct. This is not a case where the People were unaware of the existence of the Rosario material until late in the proceeding, or where the same information was almost simultaneously recorded elsewhere.[citation omitted]. It is also not the case where the People attempted to secure the 911 tape but inadvertently included the wrong address on a subpoena. [citation omitted]. Rather, this case involves the complete failure of the People to make even a perfunctory effort to obtain Rosario material which they knew existed and which they knew would be destroyed after 90 days. This failure persisted despite the several demands made by defendant. Under these circumstances, preclusion of the testimony is proper. . . .The court recognizes that preclusion of this testimony will devastate the prosecution of this case. However, this does not warrant a sanction milder than preclusion. The vital nature of this testimony and the severe consequence of its preclusion should impel the District Attorney to greater diligence, not less."
Determination Year1995
Misconduct TypePT: Brady
C/S EffectBar evidence
Pros. Misc. ReportedUKN
SanctionsUKN
Sanction TypeUKN
Web linkhttp://www.leagle.com/decision/1995484165Misc2d319_1436