author: Pigott, J. Chief Judge Lippman

text:
    [6 NE3d 1108, 983 NYS2d 752]
    The People of the State of New York, Respondent, v Lance J. Reed, Appellant.
    Argued January 6, 2014;
    decided February 13, 2014

      POINTS OF COUNSEL

      Harris Beach PLLC, Pittsford (Svetlana K. Ivy of counsel), and Timothy P Donaher, Public Defender, Rochester (Drew R. DuBrin of counsel), for appellant.
    I. The judgment convicting Lance Reed of robbery and felony murder premised on commission of robbery should be reversed because the evidence is legally insufficient to establish a forcible stealing of property. (People v Danielson, 9 NY3d 342; People v Cintron, 95 NY2d 329; People v Contes, 60 NY2d 620; People v Broadwater, 105 AD2d 1065; People v Calabria, 3 NY3d 80; People v Ledwon, 153 NY 10; People v Giuliano, 65 NY2d 766; People v Raymond, 56 AD3d 1306; People v Kennedy, 47 NY2d 196; People v Way, 59 NY2d 361.) II. Tonya McBride’s identification of the plastic grocery bag, even if viewed in the light most favorable to the People, is insufficient to serve as the basis for a conviction because of the prevalence of Tops plastic bags in Rochester, and because of the speculative nature of McBride’s identification.

      Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), for respondent.
    The verdict was supported by legally sufficient evidence. (People v Smith, 6 NY3d 827, 548 US 905; People v Bleakley, 69 NY2d 490; People v Malizia, 62 NY2d 755, 469 US 932; People v Contes, 60 NY2d 620; People v Grassi, 92 NY2d 695; People v Rush, 242 AD2d 108, 92 NY2d 860; People

      v Denis, 276 AD2d 237, 96 NY2d 782, 96 NY2d 861; People v Simon, 119 AD2d 602; People v Bass, 277 AD2d 488, 96 NY2d 780; People v Kennedy, 47 NY2d 196.)
   OPINION OF THE COURT

Pigott, J.

Shawn Thomas, a Rochester-area drug dealer, died of gunshot wounds to the head and chest on April 7, 2007. Before he left home that afternoon, Thomas had shown his girlfriend a large quantity of cash and asked her to count out $40,000. She did so, separating the $40,000 into banded $1,000 stacks and placing them in a plastic grocery bag bearing the logo of the Tops supermarket chain. She placed two knots in the top of the bag, tying the bag “real tight so you couldn’t take it out.” She then gave the bag to Thomas, who told her that he was going to re-up, which she took to mean that he was going to buy a supply of drugs for resale. Thomas left his home at around 1:00 p.m.

About an hour later the police responded to a residential neighborhood in Rochester, where Thomas lay dead of gunshot wounds in the middle of a street. His car was nearby. The police interviewed a number of neighborhood residents and passers-by who had been in the area. The interviews revealed that defendant Lance Jermaine Reed, whose father lived in the immediate vicinity, was present at the time of the shooting, and fled.

A witness who had been visiting defendant’s father at the time of the shooting recalled that defendant arrived at his father’s apartment at about 2:00 p.m. and asked to use his father’s car, a gray 1990 Lincoln Town Car with a dark blue roof. While defendant was in the apartment, the father’s visitor heard gunshots outside. Defendant told her, “those are firecrackers,” pushed her aside and bolted from the house. Looking outside, the visitor saw a man lying in the street.

Other neighborhood residents similarly heard gun shots and saw a man walk or run from defendant’s father’s apartment to a gray Lincoln Town Car with a dark blue top, get in the driver’s seat, and drive off. A mail carrier noticed someone lying in the middle of the street, and saw a man bend over the body quickly, get back up, and drive away in a car with a dark blue top. He wrote down part of the license plate number.

One eyewitness saw the actual shooting. He recalled that a masked man approached Thomas from behind and shot him in the head and twice more in the body, with a revolver, before getting into the rear seat of a Lincoln Town Car, also described as gray with a blue top. The eyewitness saw two other men get into the car; one was defendant, whom the eyewitness identified at trial. Defendant was in the driver’s seat. The men fled in the car.

The Lincoln, its plate number matching what the mail carrier had written down, was found in the parking lot of an apartment complex in the Rochester area, where defendant’s sister lived. She described defendant as having arrived at her apartment in the afternoon of the shooting, looking “scared” and “disheveled” and breathing heavily. The police obtained permission to tow and search the vehicle.

Under the armrest between the front seats of the vehicle, the police found a plastic Tops grocery bag, tied at the top and “ripped out” at the bottom. The next day, April 8, Thomas’s girlfriend identified the bag as the same one she had used to put the $40,000 in. At trial, she would testify that she had recognized it by its two knots.

Rochester police questioned defendant on April 9, 2007. Defendant admitted that he had been with Thomas, whom he had known, just before the killing and that he had driven his father’s Lincoln away from the scene immediately after the killing. Defendant told the police that Thomas had agreed to follow him to defendant’s father’s house, in his (Thomas’s) car, with the intention of giving him a ride after defendant dropped off his father’s car. Defendant said that he was dropping off the keys when he heard what sounded like firecrackers outside, and that, seeing Thomas lying in the middle of the street, he fled in the Lincoln because he did not “know what was going on.” In subsequent interviews, defendant was less forthcoming. He was arrested nearly a year later, on April 2, 2008, and charged with two counts of first-degree robbery, and one count each of felony murder and second-degree criminal possession of a weapon.

At trial, the jury heard testimony by the witnesses from the neighborhood, including the eyewitness who identified defendant as the man he had seen driving the Lincoln from the scene, with the gunman in the backseat. In addition, Thomas’s girlfriend testified about the events preceding his departure from home on April 7, 2007, and concerning her April 8, 2007 identification of the Tops bag found in the Lincoln as the same bag she had tied and put the cash in. However, no witness testified to seeing anything being taken from Thomas at the time of the shooting.

At the end of the People’s case, defendant moved for a trial order of dismissal, under CPL 290.10 (1), contending that there was legally insufficient evidence of robbery and therefore of felony murder.

The jury found defendant guilty of two counts of first-degree robbery as an accessory and one count of second-degree murder as an accessory, acquitting him of the weapon possession charge. County Court then denied defendant’s motion for a trial order of dismissal. The Appellate Division affirmed the judgment (97 AD3d 1142 [2012]). Two Justices dissented, one of whom granted defendant leave to appeal to this Court.

Defendant does not challenge the sufficiency of the evidence establishing that he was the driver of the getaway car following the killing. Rather, defendant contends that there was insufficient evidence of a robbery, in the course of which the killing occurred. In order to prove that defendant was guilty of first-degree robbery, the prosecution had to produce sufficient evidence that defendant, or someone whom he intentionally aided, forcibly stole Thomas’s property. According to defendant, there was insufficient proof that anything was stolen from Thomas. He suggests that Thomas might have completed his planned purchase of drugs before he was attacked, so that he no longer had $40,000 on his person.

The evidence that $40,000 was taken from Thomas is circumstantial. However, it is well established that “[t]he standard of appellate review in determining whether the evidence before the jury was legally sufficient to support a finding of guilt beyond a reasonable doubt is the same for circumstantial and non-circumstantial cases” (People v Grassi, 92 NY2d 695, 697 [1999]; see also People v Cabey, 85 NY2d 417, 421 [1995]). That standard, of course, is whether, viewing the evidence in the light most favorable to the prosecution, “there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007], quoting People v Acosta, 80 NY2d 665, 672 [1993]; see Jackson v Virginia, 443 US 307, 319 [1979]).

A jury, faced with a case in which the proof of a particular charge, or element thereof, consists entirely of circumstantial evidence, “must exclude to a moral certainty every other reasonable hypothesis” (People v Marin, 65 NY2d 741, 742 [1985]; see People v Way, 59 NY2d 361, 365 [1983]; People v Bearden, 290 NY 478, 480 [1943]). But an appellate court’s duty, when reviewing the jury’s finding, is not to determine whether it would have reached the same conclusion as the jury with respect to a proposed innocent explanation of the evidence (see Grassi, 92 NY2d at 699 [“Defendant has offered myriad innocent explanations or inferences that could be drawn by a jury to counter this evidence. That, however, is not the legal standard by which this Court is bound for reviewing a sufficiency of the evidence appeal”]). Rather, the appellate court, viewing the evidence in the light most favorable to the People, must decide whether a jury could rationally have excluded innocent explanations of the evidence offered by the defendant and found each element of the crime proved beyond a reasonable doubt.

Applying this standard of review, we conclude that a rational jury could have inferred beyond a reasonable doubt that the $40,000 was stolen from Thomas by defendant and the men he aided. The jury heard evidence that Thomas was carrying $40,000, in a double-knotted Tops grocery bag, about an hour before he was killed; that defendant arranged for Thomas, whom he knew, to drive to the vicinity of defendant’s father’s house; that defendant fled the scene of Thomas’s shooting, along with the gunman, in his father’s car; that one of the men bent over Thomas’s body briefly before getting into the car; and that a double-knotted Tops grocery bag was found, with its bottom torn out and contents removed, under the driver’s armrest of the same car.

Although innocent explanations may be suggested, it was permissible for the jury to infer beyond a reasonable doubt from this evidence that defendant, and the men whom he aided, lured Thomas to an area where a getaway car would be readily available for the purpose of robbing him of the large quantity of cash he was carrying; that one of the men took the grocery bag from Thomas immediately after he was shot; that the men tore the bag open at the bottom because it was tied tightly at the top, and divided up the money in defendant’s father’s car; and that defendant thoughtlessly left the empty bag in the car when he reached his sister’s home. It was not irrational to reject the theory that Thomas no longer had $40,000 on his person when he was attacked.

Defendant further argues that the Appellate Division erred in relying on Thomas’s girlfriend’s identification of the Tops bag as the same one she had knotted. Defendant insists that a double-knotted Tops grocery bag is not visually distinctive, such that a person could no more identify it, as identical to one she had seen before, than she could recognize an individual penny or soda can as the same one she had seen before. We have no occasion to reach this issue, because the evidence was sufficient to prove robbery even without the witness’s identification of the bag. That is, even if Thomas’s girlfriend had not testified that the bag found in the car was the same one she had filled with cash, the fact that a grocery bag matching her description was found in the car was, alone, highly significant under the circumstances of this case. Given the testimony that Thomas was carrying a double-knotted Tops bag, stuffed with cash, shortly before he was killed, the evidence that a double-knotted Tops bag, emptied of its contents, was found in the car in which defendant fled from the scene, was sufficiently probative, without the identification by Thomas’s girlfriend.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Lippman

(dissenting). Because the People failed to prove a crucial requisite element of felony murder and two counts of robbery in the first degree—that there was a forcible taking of property—I would find that the evidence was not legally sufficient to support the judgment of conviction. I therefore dissent.

“A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime,” as relevant here, causes serious physical injury to a nonparticipant in the crime or is armed with a deadly weapon (Penal Law § 160.15 [1], [2]). In order to be guilty of felony murder, the People must prove that, “[a]cting either alone or with one or more other persons, he commit[ted] or attempted] to commit [first degree] robbery . . . and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant. . . cause [d] the death of a [nonparticipant]” (Penal Law § 125.25 [3]). Here, there was ample evidence that a homicide took place. The absence of any evidence of a forcible taking, however, is fatal to defendant’s convictions of the above offenses.

Our standard of review for legal sufficiency is well settled. Viewing the evidence in the light most favorable to the People, we must determine whether “there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks and citations omitted]). Moreover, “the People are entitled to the benefit of every reasonable inference to be drawn from the evidence” (People v Cintron, 95 NY2d 329, 332 [2000] [emphasis added]).

Although the legal sufficiency standard is highly deferential to the verdict reached by the jury after trial, there must be some limit to the inferences we will consider permissible based on the established facts. Here, seven people witnessed the shooting or its immediate aftermath and not one of them testified to seeing anything taken from the victim. In fact, they affirmatively stated that they did not see anything in the shooter’s hands other than the gun. It is true that the mail carrier saw the gunman bend over the body in the street, but he too maintained that he did not see the gunman do anything with his hands. Under these circumstances, the inference that a forcible taking occurred cannot reasonably be drawn.

The direct evidence does not merely have gaps that can be overcome by reasonable inferences drawn from the circumstantial evidence, but contradicts the People’s case. In addition to the eyewitnesses who failed to observe any taking, it was not proved that the victim was still in possession of the money at the time he was shot. When he left the apartment at 1:00 p.m., he told his girlfriend that he would return in a half-hour. He was shot over an hour later, at a time when he had expected that the drug transaction would have been completed and he would have already used the cash as payment. We are not concerned with positing innocent explanations for the evidence. Rather, we are concerned with whether the jury’s conclusion that there was a forcible taking of the victim’s property was sufficiently supported by the evidence.

It appears the majority would agree the evidence of taking would be insufficient but for the knotted Tops supermarket bag. But this is unquestionably a very common local item. The inferential leap required to find that the presence of a plastic bag in defendant’s car supports the conclusion that a forcible taking occurred is simply too great.

As County Court observed, the issue of whether there was legally sufficient evidence in this case is “an extremely difficult and troubling” one. Since there was a failure of proof as to an essential element of the crimes, I would reverse defendant’s conviction and dismiss the indictment.

Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents and votes to reverse in an opinion in which Judges Rivera and Abdus-Salaam concur.

Order affirmed.


source: Caselaw Access Project

author: Abdus-Salaam, J.

license: Public Domain

text:
    [5 NE3d 1269, 983 NYS2d 208]
    The People of the State of New York, Respondent, v Victor Gonzalez, Appellant.
    Argued January 9, 2014;
    decided February 13, 2014

      POINTS OF COUNSEL

      Davis Polk & Wardwell LLP, New York City (Mathew S. Miller of counsel), and The Bronx Defenders, Bronx (V. Marika Meis of counsel), for appellant.
    I. The trial court misapplied CPL 250.10 by construing appellant’s request for an extreme emotional disturbance jury charge based solely on evidence introduced by the People as “[ejvidence ... to be offered by the defendant” and statutory “notice,” entitling the People to reopen their case and present psychiatric evidence to rebut their own evidence. (People

      v McKenzie, 19 NY3d 463; People v Moye, 66 NY2d 887; People v Harris, 95 NY2d 316; People v Almonor, 93 NY2d 571; People v Berk, 88 NY2d 257; People v Diaz, 15 NY3d 40; People v Wenzel, 133 AD2d 716; People v Davis, 136 Misc 2d 1076; People v Khan, 68 NY2d 921; People v Johnson, 225 AD2d 464.) II. The trial court violated appellant’s Fifth Amendment rights by conditioning allowance of the extreme emotional disturbance jury charge on the introduction of appellant’s Fifth-Amendment-protected statements against him. (Estelle v Smith, 451 US 454; Buchanan v Kentucky, 483 US 402; People v Diaz, 3 Misc 3d 686; People v Kruglik, 256 AD2d 592; New Jersey v Portash, 440 US 450; Brooks v Tennessee, 406 US 605; Battie v Estelle, 655 F2d 692; Brown v Butler, 876 F2d 427; United States v Trapnell, 495 F2d 22; People v Bagby, 65 NY2d 410.)

      Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.
    Justice Cirigliano properly conditioned appellant’s right to assert extreme emotional disturbance upon the prosecution’s right to rebut that defense. (People v Roche, 98 NY2d 70; People v Smith, 1 NY3d 610; People v McKenzie, 19 NY3d 463; People v Diaz, 15 NY3d 40; People v Moye, 66 NY2d 887; People v Wenzel, 133 AD2d 716; People v Almonor, 93 NY2d 571; People v Hall, 18 NY3d 122; People v Jenkins, 44 AD3d 1, 11 NY3d 282; People v Garguilio, 57 AD3d 797.)
   OPINION OF THE COURT

Abdus-Salaam, J.

Under CPL 250.10, a defendant must provide notice of intent to offer evidence in connection with the affirmative defense of extreme emotional disturbance (EED). We have held that a defendant seeking to admit expert or lay testimony related to an EED defense must comply with the notice requirement before that defense may be submitted to the jury (see People v Diaz, 15 NY3d 40, 46-47 [2010]; People v Berk, 88 NY2d 257, 263 [1996]). The question presented here is whether CPL 250.10 applies where the defendant offers no evidence at trial hut requests an EED jury charge based solely upon evidence presented by the People. We conclude that statutory notice is not required under these circumstances.

L

On May 9, 2006, defendant bludgeoned his boss, Wilfredo Pinto Lebrón, Jr., to death with a hammer and dismembered his body. Police arrested defendant after Lebron’s girlfriend discovered his severed torso in a garbage can outside her apartment building. Defendant subsequently confessed to killing Lebrón and took police to the locations in the Hunts Point area of the Bronx where he had discarded the remaining body parts.

The following day, defendant signed a written statement prepared by a police detective that described how the crime had transpired. According to the statement, Lebrón had first attacked defendant on the night of the killing by punching defendant in the face and breaking a wooden bookshelf across his back. A neighbor broke up the altercation, but when Lebrón tried to instigate another fight, defendant went to his room to retrieve a hammer that, by his account, he needed to defend himself against Lebrón. When Lebrón confronted defendant again, he struck Lebrón in the head with the hammer. Lebrón tried to run into a bedroom, but defendant followed and hit Lebron’s head several more times with the hammer until Lebrón stopped moving. Defendant then dragged Lebron’s body to the bathroom and dismembered it using knives from the kitchen. He placed the body parts into separate garbage bags and, after cleaning up the apartment, deposited the bags into different garbage cans in Hunts Point.

After executing the statement, defendant gave a videotaped confession to a Bronx County Assistant District Attorney. Defendant’s account of the events was essentially the same as what he described in the written statement. However, defendant stated several times during the confession that he had “lost [his] mind” during the fight with Lebrón and was “out of [his] mind” while he dismembered Lebron’s body. Defendant further claimed that Lebrón, who had been defendant’s boss at his construction job, had physically and mentally abused him every day for weeks prior to the killing. Defendant was subsequently charged with murder in the second degree (Penal Law § 125.25), manslaughter in the first degree (id. § 125.20), removal of a body (Administrative Code of City of NY § 17-201), and dissection of the body of a human being (Public Health Law § 4210-a).

Before trial, defendant’s attorney served on the People and filed with the court a notice of intent to proffer psychiatric evidence in connection with an EED defense (see CPL 250.10 [2]; see id. at [1] [b]). Defendant submitted to an examination by the People’s psychiatrist, Dr. Goldsmith (see id. at [3]), and was also examined by his own psychiatrist. The psychiatric reports were later exchanged between the parties (see id. at [4]).

Subsequent to the examinations but prior to trial, defense counsel informed the prosecutor that defendant would not be presenting any psychiatric evidence at trial and that counsel would withdraw the CPL 250.10 notice. Defense counsel never formally withdrew the notice, however, and never informed the trial court of his intention to do so. When the prosecutor later told defense counsel that he would seek to introduce the video confession into evidence, defense counsel represented that defendant planned to assert a justification defense.

At trial, the People introduced defendant’s written statement and the videotaped confession into evidence during their casein-chief. The People also presented testimony from several witnesses, including the police detectives who interviewed defendant and a medical examiner who determined that Lebrón’s death was caused by a combination of 10 hammer blows to the head and two stab wounds to the heart. The defense rested without presenting a case or cross-examining any of the People’s witnesses regarding defendant’s mental state.

At the charge conference conducted prior to summations, defense counsel requested that the jury be instructed on EED. The trial court agreed that the evidence presented by the People, in particular the videotaped confession, established the elements of an EED defense and defendant was therefore entitled to a jury instruction. The prosecutor opposed the request, stating that he had been led to believe that defendant’s CPL 250.10 notice had been withdrawn and that defendant would rely on a justification defense rather than an EED defense. The prosecutor asserted that, now that defendant sought an EED charge, the People had the right to rebut that charge with testimony by Goldsmith, who had opined, based on his examination of defendant while the CPL 250.10 notice was still in effect, that defendant had killed Lebrón out of anger but had not lost control of his actions. Defense counsel countered that the People were not permitted to rebut their own evidence, that CPL 250.10 does not apply where a defendant has offered no psychiatric evidence, and that the introduction of Goldsmith’s testimony, to the extent that it relied on statements defendant had made during the psychiatric examination, would violate his Fifth Amendment privilege against self-incrimination.

The trial court ruled that it would submit an EED charge to the jury on the condition that, out of fairness, the People be given the opportunity to call Goldsmith to rebut the EED defense. Defense counsel, in response to the court’s ruling, withdrew his request for the charge, and the prosecutor subsequently declined to call Goldsmith, stating that he had no reason to do so if defendant was no longer requesting an EED charge. The jury later convicted defendant of second-degree murder.

Defendant moved to set aside the verdict, arguing, as relevant here, that the trial court erred by failing to give the EED charge when the People’s evidence supported that charge, and by ruling that defendant was only entitled to the charge if the People were permitted to present Goldsmith’s testimony. Supreme Court denied the motion, holding that defendant’s request for an EED charge served, essentially, as CPL 250.10 notice that defendant intended to offer his videotaped statements in support of an EED defense, and thus, the People were entitled to call Goldsmith to rebut that defense (see 26 Misc 3d 687, 695 [Sup Ct, Bronx County 2009]).

The Appellate Division affirmed (91 AD3d 453 [1st Dept 2012]). The court agreed with the trial court that “defendant’s request for an EED charge [w]as the equivalent of a ‘notice of intent to proffer psychiatric evidence’ under CPL 250.10” (91 AD3d at 454). The court explained that “[w]hen defendant requested the . . . charge based on his statements to the police, defendant ‘offered’ that evidence ‘in connection with’ the EED defense, notwithstanding the fact that defendant did not present a case or cross-examine the People’s witnesses concerning his mental state” (id.). Noting that we had previously construed CPL 250.10 “as applicable to ‘any mental health evidence to be offered by the defendant in connection with’ a defense of extreme emotional disturbance,” the court determined that “[t]his broad statutory mandate encompasses, in this case, the request for an EED charge based on the videotape that was in evidence” (id. at 455, quoting People v Berk, 88 NY2d 257, 265 [1996]). A Judge of this Court granted defendant leave to appeal (20 NY3d 1099 [2013]), and we now reverse.

IL

“The affirmative defense of extreme emotional disturbance serves to reduce the degree of criminal culpability for acts that would otherwise constitute murder” (People v Diaz, 15 NY3d 40, 44-45 [2010]; see Penal Law § 125.25 [1] [a]). If the defendant proves by a preponderance of the evidence (see Penal Law § 25.00 [2]) that the homicide was committed while the defendant was “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse,” the jury may find the defendant guilty of first-degree manslaughter rather than second-degree murder (id. § 125.25 [1] [a]; see id. § 125.20 [2]; Diaz, supra).

A defendant is entitled to a jury charge on EED where the evidence, viewed in the light most favorable to the defendant, is sufficient for the jury “to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied” (People v Moye, 66 NY2d 887, 889 [1985]; accord People v Harris, 95 NY2d 316, 320 [2000]; People v White, 79 NY2d 900, 903 [1992]). Accordingly, the trial court must grant the defendant’s request for an EED charge if the jury could reasonably conclude from the evidence that, at the time of the homicide, the defendant “was affected by an extreme emotional disturbance, and that [the] disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it” (People v McKenzie, 19 NY3d 463, 466 [2012], citing People v Casassa, 49 NY2d 668, 678-680 [1980], cert denied 449 US 842 [1980] [citation and footnote omitted]). This is true even if the “[defendant did not testify or otherwise present evidence” and the “request for an extreme emotional disturbance charge [i]s based entirely on proof elicited during the People’s case” (McKenzie, supra at 465).

Under CPL 250.10, a defendant must “serve[ ] upon the [P]eople and file[ ] with the court a written notice of his intention to present psychiatric evidence” in connection with the defenses of lack of criminal responsibility by reason of mental disease or defect (i.e., insanity), EED, and any other defense (CPL 250.10 [2]; see id. at [1] [a], [b], [c]). Once notice has been provided, the court may compel the defendant to submit to an examination by a psychiatrist or licensed psychologist retained by the People (CPL 250.10 [3]). We have held that, upon the trial court’s discretion, the People may use the examination to rebut the “psychiatric evidence” the defendant presents (see Diaz, 15 NY3d at 47). Failure to comply with the notice provision will preclude the defendant not only from admitting psychiatric evidence, but from “raising any defense predicated on a mental infirmity, including extreme emotional disturbance” (Diaz, 15 NY3d at 45; see People v Almonor, 93 NY2d 571, 581 [1999] [“The statute is not cast so as to allow a defense or affirmative defense to be introduced when notice is given; it is cast in terms that bar the defense unless notice is given”]).

Here, defendant effectively withdrew the CPL 250.10 notice he submitted prior to trial and sought an EED charge based on the People’s proof. The parties do not dispute that defendant’s statements in the videotaped confession were sufficient to support the charge, as the trial court concluded, or that defendant was entitled to an EED charge even though his request for the charge was based solely on evidence admitted by the People (see McKenzie, supra). The issue is whether CPL 250.10 applied where defendant presented no evidence of EED, and instead relied on the People’s direct case to support the submission of his EED defense to the jury. The courts below treated defendant’s request for an EED charge as the equivalent of CPL 250.10 notice because, in their view, defendant was essentially giving notice that he intended to “offer” his videotaped statements “in connection with” an EED defense (see CPL 250.10 [1] [b]). This conclusion was error.

As originally enacted, CPL 250.10 required that “a defendant serve advance notice of intent to rely upon the insanity defense” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 250.10 at 109-110 [emphasis added]; see Berk, 88 NY2d at 262). In 1980, the legislature amended the notice provision to require written notice where the defendant “inten[ds] to present psychiatric evidence,” rather than simply “rely upon” an insanity defense (see L 1980, ch 548, § 7), so the amended statute would apply when a defendant sought to admit evidence to support that defense (see Executive Mem at 2, Bill Jacket, L 1980, ch 548 [“defendant must give notice of intent to give evidence of mental disease or defect” (emphasis added)]). When the legislature amended the statute again in 1982 to address EED, it did not return to the requirement that a defendant provide notice when relying upon a mental infirmity defense; it simply added EED to the types of psychiatric evidence that, when “offered by the defendant,” triggers the notice requirement (see L 1982, ch 558, § 9; Berk, supra).

In its present form, CPL 250.10 requires notice when a defendant “intenfds] to present psychiatric evidence” (id. at [2] [emphasis added]), which the statute broadly defines as “Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of,” as relevant to this appeal, “extreme emotional disturbance” (id. at [1] [b] [emphasis added]). The legislature did not specify what qualifies as mental health evidence “offered by the defendant”; however, to “offer evidence,” as that legal phrase is traditionally understood, means to put forth evidence and “demand its admission” (Black’s Law Dictionary 1081 [6th ed 1990]; see Black’s Law Dictionary [9th ed 2009], proffer [“To offer or tender (something, esp. evidence) for immediate acceptance”]). Additionally, the frequently used meaning of “present” is “to bring or introduce into the presence of someone” (Merriam-Webster’s Collegiate Dictionary 982 [11th ed 2003]). The legislature’s use of these “active” terms suggests that it intended the notice requirement to apply where the defendant affirmatively seeks to admit psychiatric evidence in support of an EED defense.

This interpretation comports with our broad construction of the notice provision. We have reiterated that CPL 250.10 “applies to any mental health evidence to be offered by the defendant in connection with” a mental infirmity defense (Berk, 88 NY2d at 265), and as such, “ ‘any’ mental health evidence offered by a defendant” requires notice to be admissible (Diaz, 15 NY3d at 47). This includes “expert or lay testimony, whether by the defendant or other persons,” that “seeks to establish a mental infirmity” defense (id.). Although construing the statute “broadly,” we have recognized that it applies only to mental health evidence “offered by a defendant” (id.), meaning that the defendant must be the proponent of the evidence for notice to be required (Berk, supra at 265 [notice required where defendant “sought to introduce expert testimony by a forensic psychologist”]; see Diaz, supra at 43 [notice required where “defendant testified on his own behalf and presented the testimony of a psychiatrist who had examined him”]; see also Almonor, 93 NY2d at 577 [holding that the trial court properly precluded the defendant from presenting psychiatric evidence “related to lack of assaultive intent” due to defective notice]).

Here, defendant did not “offer” or “present” evidence in connection with his EED defense. Specifically, defendant never put forth and demanded the admission of any evidence related to EED (see Diaz, supra; Berk, supra), nor did he cross-examine any of the People’s witnesses about EED or his mental health (cf. People v Wenzel, 133 AD2d 716, 716-717 [2d Dept 1987], lv denied 70 NY2d 939 [1987] [holding that defendant “endeavored to prove his (EED) defense by cross-examination of the People’s witnesses” and this was considered “proof of the defense” for the purposes of CPL 250.10 (5)]). Rather, defendant relied on evidence admitted by the People during their direct case to support his request for an EED charge. Requesting an EED charge based on the People’s proof is not commensurate with “offer-ting]” evidence “in connection with” an EED defense for the purposes of triggering the notice requirement. CPL 250.10 requires notice whenever a defendant intends to admit evidence establishing a mental infirmity defense (Diaz, supra at 47; Berk, supra at 265); a defendant merely relying on the People’s proof simply does not come within the ambit of the statute. Accordingly, defendant’s request for an EED charge should not have been construed as CPL 250.10 notice, as the courts below held, and defendant was not required to provide notice in order to receive the charge.

This result does not offend the important policy considerations underlying the notice requirement. “The statutory notice provision is grounded on principles of fairness and is intended ‘to prevent disadvantage to the prosecution as a result of surprise’ ” occasioned by the defendant’s sudden interposition of psychiatric evidence and an accompanying mental infirmity defense (Diaz, supra at 46, quoting Berk, 88 NY2d at 263). Although the statute states that psychiatric evidence is “inadmissible” without proper notice (CPL 250.10 [2]), we have construed the notice provision more broadly, holding that a defendant will be barred from even raising an EED defense unless he or she provides notice (see Diaz, supra at 45; Almonor, 93 NY2d at 581). This rule further protects the People from the prejudice caused by “surprise” mental health evidence (see Diaz, supra at 46-47). When defendant seeks an EED charged based on the People’s proof, however, the concern for “preventing unfair surprise” is reduced (Diaz, supra at 46). There, the defendant is not attempting to introduce new mental health evidence, but is merely relying on evidence the People chose to admit.

Here, the videotaped confession contained statements that could support an EED charge, whereas defendant’s written statement did not. Deciding which evidence to include in the case-in-chief is often a matter of strategy, and in this case, the People made the strategic decision to admit the videotape into evidence. Of course, defense counsel employed a strategy as well by withdrawing the initial CPL 250.10 notice and waiting until the close of proof to request the EED charge based on the videotaped statements. Although the charge request came as a surprise to the People, particularly in light of the prosecutor’s prior discussions with defense counsel, it was still based on the People’s own evidence, and therefore was not so inherently disadvantageous as to justify expanding the notice requirement.

The People nevertheless maintain that we should interpret CPL 250.10 broadly to require that defendants give notice whenever they intend to rely on the prosecution’s evidence to support an EED defense. Such a rule would be no different from requiring notice every time a defendant intends simply to rely upon an EED defense. CPL 250.10 does not require notice in these circumstances, and if the legislature had intended otherwise, it would not have removed comparable language from the statute, or it would have reinstated that language in the 1982 amendment that addressed EED.

Additionally, the People’s rule would be impracticable in application. CPL 250.10 (2) requires that notice be given “before trial” and “not more than thirty days after entry of the plea of not guilty to the indictment.” Under the People’s view, defendants could only comply with the notice requirement if they revealed “before trial” that they intended to rely on the People’s evidence to support an EED defense. Although the aim of CPL 250.10 is to “prevent[ ] unfair surprise” by permitting the People to adequately prepare for a mental infirmity defense (Diaz, 15 NY3d at 47), the legislature did not necessarily intend that a defendant be forced to disclose, ahead of trial, that his or her trial strategy depends entirely on evidence to be offered by the People. A defendant may not know at this early juncture what evidence the People intend to admit. As a result, most defendants would likely file late notice, which the statute allows at the trial court’s discretion (see CPL 250.10 [2]), but the legislature did not intend to be the normal procedure.

m.

Having determined that CPL 250.10 notice is not required where a defendant relies on the People’s evidence to support an EED charge, we now consider whether the trial court abused its discretion here by, in exchange for issuing the EED charge, permitting the People to introduce Goldsmith’s testimony. Because no notice was required, there was no statutory basis for allowing the People to use the psychiatric examination against defendant. Thus, the trial court abused its discretion by conditioning the EED charge on the People’s presentation of Goldsmith’s testimony when it should have simply submitted that charge to the jury.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera concur.

Order reversed and a new trial ordered.

      . Defendant never confessed to stabbing Lebrón while he was still alive, only to dissecting his dead body.

      . The prosecutor argued during the charge conference that defendant was not entitled to an EED charge because defendant’s statements in the videotaped confession did not show that defendant had lost self-control when he killed Lebrón. The People have abandoned this argument on appeal.

      . With the 1980 amendment, the legislature also added the provision authorizing the People to have a defendant examined by a mental health professional; thus, the title of the statute was changed from “Notice of defense of mental disease or defect” to the name it retains today: “Notice of intent to proffer psychiatric evidence-, examination of defendant upon application of prosecutor” (L 1980, ch 548, § 7; CPL 250.10 [emphasis added]).

      . The People argue that the trial court did not err by conditioning the EED charge on the People’s presentation of Goldsmith’s testimony because that testimony would not necessarily have relied on defendant’s statements. But the People never made this claim before the trial court; rather, the prosecutor made clear that the People intended to call Goldsmith to testify that he had determined, based on his examination of defendant, that defendant did not suffer from EED at the time of the homicide.


author: Read, J. Chief Judge Lippman

text:
    [6 NE3d 586, 983 NYS2d 468]
    The People of the State of New York, Respondent, v Christopher Martinez, Appellant. The People of the State of New York, Respondent, v Selbin Martinez, Appellant.
    Argued January 16, 2014;
    decided February 18, 2014

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Marisa K. Cabrera of counsel), for appellant in the first above-entitled action.
    I. The trial court’s refusal to issue an adverse inference instruction for lost Rosario material requires reversal where the court based its ruling solely on the officer’s lack of bad faith and where Christopher Martinez suffered prejudice. (People v Rosario, 9 NY2d 286; People v Poole, 48 NY2d 144; People v Young, 79 NY2d 365; People v Banch, 80 NY2d 610; People v Washington, 86 NY2d 189; People v Kelly, 62 NY2d 516; People v Joseph, 86 NY2d 565; People v Wallace, 76 NY2d 953; People v Haupt, 71 NY2d 929; People v LaFontaine, 92 NY2d 470.) II. The prosecution failed to prove Christopher Martinez’s guilt beyond a reasonable doubt as a matter of law where the only evidence tying Mr. Martinez to the incident was the complaining witness’s incredible testimony that he was able to recognize the brief backwards movement of the masked and silent perpetrator due to his occupation as a “repairman.” (Jackson v Virginia, 443 US 307; People v Reed, 64 NY2d 1144; People v Sandoval, 34 NY2d 371; People v Fratello, 92 NY2d 565; People v Brown, 80 NY2d 729; People v Way, 59 NY2d 361; Matter of Dorothy D., 49 NY2d 212; People v Carter, 63 NY2d 530.)

      Robert T. Johnson, District Attorney, Bronx (Ravi Kantha, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent in the first above-entitled action.
    I. Defendant’s conviction was supported by overwhelming evidence. (People v Scarborough, 49 NY2d 364; People v Delamota, 18 NY3d 107; People v Rossey, 89 NY2d 970; People v Bleakley, 69 NY2d 490; People v Conway, 6 NY3d 869; People v Ford, 66 NY2d 428; People v Norman, 85 NY2d 609; People v Deegan, 69 NY2d 976; People v Lesiuk, 81 NY2d 485; People v Lee, 221 AD2d 473.) II. The trial court did not abuse its discretion when it declined to issue an adverse inference charge regarding the loss of Officer Franco’s handwritten complaint report, and in any event, any error in that regard was harmless. (People v Stephens, 84 NY2d 990; People v Rosario, 9 NY2d 286; People v Consolazio, 40 NY2d 446; People v Ranghelle, 69 NY2d 56; People v Wolf, 284 AD2d 102; People v Wallace, 76 NY2d 953; People v Haupt, 128 AD2d 172, 71 NY2d 929; People v Joseph, 86 NY2d 565; People v Jenkins, 98 NY2d 280; People v Brown, 71 AD3d 1043.)

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Rahul Sharma and Joseph M. Nursey of counsel), for appellant in the second above-entitled action.
    I. The trial court erred in refusing to give a permissive adverse inference charge for the State’s failure to preserve Rosario material, where there is a strong likelihood that the material contained statements contradicting the complainants’ trial testimony. (People v Joseph, 86 NY2d 565; People v Rosario, 9 NY2d 286; People v Banch, 80 NY2d 610; People v Wallace, 76 NY2d 953; People v Haupt, 71 NY2d 929; People v Malizia, 62 NY2d 755; People v Vilardi, 76 NY2d 67; People v Machado, 90 NY2d 187; People v Handy, 20 NY3d 663; People v Concepcion, 17 NY3d 192.) II. The trial court prejudiced Selbin Martinez when, over the defense’s objection, it erroneously instructed the jury that Armando Irizarry identified an alleged assailant as Selbin from a “portion of his face.” (People v Bell, 38 NY2d 116; People v De Jesus, 42 NY2d 519; People v Jamison, 47 NY2d 882.) III. The evidence was legally insufficient to support Selbin Martinez’s conviction for attempted robbery, where the only evidence of the offense was a complainant’s contradicted testimony that one of the assailants said “give it up,” and where the identification of Selbin was based largely upon an indescribable body movement. (People v

      Carroll, 95 NY2d 375; People v Piazza, 48 NY2d 151; People v Calabria, 3 NY3d 80; People v Foster, 64 NY2d 1144.)

      Robert T Johnson, District Attorney, Bronx (Ravi Kantha, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent in the second above-entitled action.
    I. Defendant’s conviction was supported by overwhelming evidence. (People v Scarborough, 49 NY2d 364; People v Delamota, 18 NY3d 107; People v Rossey, 89 NY2d 970; People v Bleakley, 69 NY2d 490; People v Conway, 6 NY3d 869; People v Ford, 66 NY2d 428; People v Norman, 85 NY2d 609; People v Deegan, 69 NY2d 976; People v Lesiuk, 81 NY2d 485; People v Hawkins, 11 NY3d 484.) II. The trial court did not abuse its discretion when it declined to issue an adverse inference charge regarding the loss of Officer Franco’s handwritten complaint report, and in any event, any error in that regard was harmless. (People v Stephens, 84 NY2d 990; People v Rosario, 9 NY2d 286; People v Consolazio, 40 NY2d 446; People v Ranghelle, 69 NY2d 56; People v Wolf, 284 AD2d 102, 98 NY2d 105; People v Wallace, 76 NY2d 953; People v Haupt, 128 AD2d 172, 71 NY2d 929; People v Joseph, 86 NY2d 565; People v Jenkins, 98 NY2d 280; People v Brown, 71 AD3d 1043.) III. The trial court’s identification charge was proper in all respects. (People v Culhane, 45 NY2d 757; People v Saunders, 64 NY2d 665; People v Hudson, 251 AD2d 124; People v Woods, 199 AD2d 176; People v Bell, 38 NY2d 116; People v De Jesus, 42 NY2d 519; People v Jamison, 47 NY2d 882; People v Crimmins, 36 NY2d 230; People v Kello, 96 NY2d 740.)
   OPINION OF THE COURT

Read, J.

This appeal calls upon us to decide whether the trial judge abused his discretion when he declined to give an adverse inference charge regarding the loss of the handwritten complaint report (commonly referred to as a “scratch 61”) prepared by a police officer who responded to a 911 call reporting a robbery. Defendants Selbin Martinez (Selbin) and Christopher Martinez (Christopher) (collectively, defendants) were subsequently convicted of attempted robbery in connection with this incident. For the reasons that follow, we conclude that the judge did not abuse his discretion.

I

On Friday, July 17, 2009, at roughly 4:00 p.m., 45-year-old Armando Irizarry, Sr. (Irizarry), a self-employed repairman, returned from a job to his apartment on the 14th floor of a high-rise building on Havemeyer Avenue in the Bronx. The building is public housing owned by the New York City Housing Authority, and Irizarry had lived in the same apartment there for about seven years. He was well-acquainted with defendants, longtime residents of an apartment on the building’s 13th floor. Through the years, he had engaged in casual conversation with them both.

Irizarry saw Christopher “[a]lmost every day . . . hanging out” in the hallway on the 14th floor, “either smoking cigarettes or talking to his friend,” who lived on that floor. Christopher and this friend were inseparable. Irizarry owns a Jack Russell terrier, a very nervous dog that “hated” Christopher. When Irizarry left his apartment with the dog to go downstairs and outside to walk her, the terrier would bark at Christopher, who invariably reacted by “run[ning] awkwardly . . . like hopping” as he “back[ed] up away from” the dog, scared. Irizarry also encountered Selbin a few times a week in the building. He noticed that Selbin, too, had “a particular way [of] walk[ing]” and holding his shoulders. Irizarry described himself as “really bad with people and faces,” which forced him “to rely on movements and physical characteristics to remember people.”

Upon arriving home, Irizarry received a call from his adult son, who had been waiting for him at a neighbor’s apartment. Irizarry intended to return to work to finish up a job so that he could get paid for it the next day. But first, after his son “implied that he was hungry,” Irizarry ordered takeout from a Chinese restaurant and gave his son $20 to pay for the food. At about 5:00, he accompanied his son into the 14th floor’s well-lit hallway on the way to the elevator and downstairs to the lobby to pick up the food delivery.

Two elevators and adjacent stairwells A and B are located outside Irizarry’s apartment. Because one of the elevators was typically out of order, Irizarry’s son peered through the elevator windows to see which one was working at the time. Meanwhile, Irizarry heard noise in stairwell B. When he opened the stairwell’s door out of curiosity, he spotted someone “all in black” crack the door on the floor below and “t[ake] a peek” at him, but he was not alarmed; he closed the door and headed back to the elevator. Suddenly, though, a man emerged from the stairwell, dressed from head to toe in black. His face hidden behind a ski mask that exposed only his mouth and eyes, the man also wore sunglasses, a hat and gloves. Armed with a baseball bat, he was closely followed by a second man, similarly clad all in black, with his head and face concealed by a hood and a ski mask that exposed only his eyes. The second man carried a gun.

Irizarry “right away” recognized the first man as Selbin “because of the way he walks” and because he is “really slim and tall.” Assuming at first that Selbin was just joking around, Irizarry stepped up to him upon his approach and asked, “What’s up, Silence?,” a reference to Selbin’s nickname. In response, Selbin pushed Irizarry and told him to “Give it up.” Now fearful that Selbin and his companion intended harm and sensing that Selbin was ready to swing the bat at him, Irizarry pulled out from his pocket a sock in which he had stuffed a billiard ball. He always carried this makeshift weapon with him for protection.

Irizarry threatened Selbin with the billiard ball, and called out to his son to alert him to the danger. Selbin then walked toward Irizarry’s son, swinging the bat from side to side and signaling him to be quiet by putting a finger up to his mouth and vocalizing “Shh.” As Selbin made this gesture, he inadvertently revealed his mustache. Irizarry’s son backed away from Selbin, edging toward the elevators and sliding in the direction of stairwell A.

At that point, Irizarry turned his attention to the other man so as “to put space between” that man’s gun and Irizarry’s son. As he advanced, brandishing his billiard ball, the gunman immediately retreated to stairwell B by running backward “just like . . . when he [saw Irizarry’s] Jack Russell dog. Exactly the same thing,” which is when and how Irizarry recognized Christopher.

Irizarry then grabbed his son and pulled him into stairwell A, and closed and blocked the door, which has a window. As Selbin tried to pry the door open and Irizarry, who is much heavier, resisted, Selbin’s ski mask shifted, uncovering his chin, nose and cheek. Afraid that Christopher might gain access to stairwell A from another floor and shoot him and his son, Irizarry opened the door slightly, swung “as hard as [he] could” and hit Selbin with the billiard ball, flooring him. Certain that Selbin was “dizzy, confused because [he] hit him hard,” Irizarry “decided to run for [his] life” and “dragtged his] son with [him], all the way downstairs to the first floor,” where he called 911 at 5:47 p.m. Irizarry told the operator that he thought he knew the perpetrators’ identities, but he did not then name them.

Irizarry’s son had been holding the $20 in his hand while waiting for the elevator, and at some point—he believes when his father jerked him into the stairwell—he dropped the money in the hallway. After making the 911 call, Irizarry and his son went back up to the 14th floor and looked for the $20 to no avail. Before returning to Irizarry’s apartment, they did, however, find a single lens from a pair of sunglasses on the floor in front of stairwell A. With this discovery, Irizarry deduced that he must have hit Selbin in the face with the billiard ball.

The day this happened, Police Officer Hairo Franco and his partner were working from 5:30 p.m. until 2:00 a.m. the next morning as part of a plainclothes police unit organized to combat street-level violence. They were patrolling the precinct when they received a radio call from the dispatcher telling them of a 911 call reporting a robbery at the Havemeyer address. They arrived at the building at 5:55 p.m. and went to Irizarry’s apartment, where they spoke with him and his son. Irizarry gave the police a description of the perpetrators. He still did not identify either of them by name, however. Officer Franco called the “Viper” unit, responsible for monitoring the security cameras in the building, and learned that no one fitting the descriptions given by Irizarry had been seen leaving the premises. Officer Franco and his partner then canvassed the building, starting at the roof, but found no suspects.

After speaking with Officer Franco, Irizarry and his son were taken to the police station where they spoke to a detective. During this interview, Irizarry identified Selbin as one of the perpetrators. He told the police where Selbin lived, and at about 7:00 p.m. that evening, they arrived at defendants’ apartment, where a young girl answered the door and indicated she was alone. When defendants’ mother got home from work a few minutes later, the police told her they were looking for Selbin and asked for permission to check the apartment. She agreed. In one of the bedrooms, the officers moved an ironing board obstructing the closet door and discovered Selbin inside, huddling on the floor under a jumble of clothes; he sported a fresh cut and lump on his forehead. Officer Franco placed Selbin under arrest. Christopher, who was in the apartment at the time, was arrested by another officer at 8:00 a.m. the next day.

On July 29, 2009, the grand jury handed down a 17-count indictment accusing defendants of committing various crimes, including attempted robbery, assault, grand and petit larceny, criminal possession of stolen property and criminal weapon possession. At the ensuing joint jury trial in November 2010, Irizarry, his son and Officer Franco testified as narrated. The jury also heard the 911 tape and viewed a photograph taken by Officer Franco at the time of Selbin’s arrest to show the condition of his forehead.

On cross-examination, Irizarry conceded that some of the details he recounted in his testimony seemingly differed from contemporaneous accounts based on information that he provided to law enforcement. For example, the detective who interviewed him at the precinct recorded that Irizarry stated that “none of the perpetrators said anything” to him, and the criminal complaint signed by Irizarry did not mention that either of the perpetrators swung a bat at him or his son. He explained these inconsistencies or omissions by saying he was in shock at the time and so may have forgotten to tell the police or the district attorney some details, or they may have neglected to record some details or they may not have fully understood him because of his accent.

Officer Franco on cross-examination acknowledged that the only “paperwork” or notes he created between the time he first arrived at the Havemeyer address and Selbin’s arrest were to be found in his memo book. When he returned to the precinct after the arrest, he prepared a scratch 61, which he “put... in the bin where it gets filed.” Asked if this was “[t]he same file as the other paperwork in this case that was turned over to the prosecutor,” Officer Franco answered “No.” He confirmed that he never gave the scratch 61, the handwritten complaint report, to the prosecutor and did not have it with him. Neither Officer Franco’s memo book nor the typewritten complaint report set out any description of the perpetrators.

At the conclusion of the People’s case, Christopher’s attorney-requested the scratch 61 prepared by Officer Franco. The prosecutor indicated that this document had never been turned over to the District Attorney’s office, and, as she understood Officer Franco’s testimony, he could not locate it. Christopher’s attorney responded as follows:

“[Officer Franco] said he put it in the bin where it’s supposed to go and—I would call upon for the production of that [sic]. And if that cannot be produced, I would ask that the jury be instructed that they can draw an adverse inference on that.”

The judge said he would consider this application, which Selbin’s attorney joined.

Selbin presented no evidence; Christopher, however, demonstrated for the jury his manner of walking, running and hopping backward. After the close of evidence, the following exchange took place:

“[Christopher’s attorney]: One quick thing. The scratch 61, Your Honor, is preserving [sic] on that application?
“THE COURT: I am not going to charge. There is a reason to be said he doesn’t have it any more [sic], and therefore, I’m not going to give you an unfavorable inference charge.”

Both attorneys took exception.

During summations, the defense attorneys characterized Irizarry’s testimony as incredible, and adduced various claimed or actual inconsistencies between his trial testimony and prior statements attributed to him. Christopher’s attorney stressed that Irizarry identified his client as the gun-wielding perpetrator solely on the basis of a supposedly distinctive, “awkward[ ]” way of backing up. He argued that when Christopher demonstrated his manner of walking backwards for the jurors, they could see for themselves that his client did not move awkwardly. Neither attorney mentioned the lost scratch 61 (cf. People v Haupt, 71 NY2d 929, 931 [1988], discussed infra).

The trial judge submitted seven counts to the jury: two counts of attempted first-degree robbery (Penal Law §§ 160.15 [4]; 110.00 [attempted forcible stealing of property where a firearm is displayed]; Penal Law §§ 160.15 [3]; 110.00 [attempted forcible stealing of property involving the use or threatened use of a dangerous weapon]), and a count each of attempted second-degree robbery (Penal Law §§ 160.10 [1]; 110.00 [attempted forcible stealing of property when aided by another person actually present]), attempted third-degree robbery (Penal Law §§ 160.05; 110.00 [attempted forcible stealing of property]), attempted second-degree assault (Penal Law §§ 120.05 [2]; 110.00 [attempting to cause physical injury to another person by means of a deadly weapon or dangerous instrument]), attempted grand larceny in the fourth degree (Penal Law §§ 155.30 [5]; 110.00 [attempting to steal property, regardless of its value, by taking it from the person of another]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2] [knowingly possessing a dangerous or deadly weapon or instrument with intent to use it unlawfully against another]). As part of the identification charge, the judge instructed the jury that “[w]hen [Irizarry] testified about Selbin Martinez he said he recognized his manner of walking[,] body[ ] shape and saw a portion of his face.” Selbin’s attorney objected that the trial judge thereby erroneously instructed the jury that Irizarry made a facial identification of Selbin.

On November 19, 2010, the jury acquitted defendants of both counts of attempted first-degree robbery, and also acquitted Christopher of attempted second-degree robbery. The jury, however, convicted Selbin of attempted second-degree robbery, and Christopher of attempted third-degree robbery. On March 10, 2011, Supreme Court sentenced Selbin as a second felony offender to a determinate prison term of 4Vz years, to be followed by five years of postrelease supervision; and Christopher to an indeterminate prison term of 1 to 3 years. Both defendants appealed.

In May 2012, a panel of the Appellate Division affirmed Christopher’s conviction and sentence, bolding that the evidence was legally sufficient and the verdict was not against the weight of the evidence (95 AD3d 677 [1st Dept 2012]). The court noted that Irizarry saw Christopher almost daily and identified him “by a distinctive body movement, which [Irizarry] had seen [Christopher] make many times”; that “[a] distinctive gait or body movement may be a valid means of identification”; and that “the trial court granted [Christopher] permission to demonstrate his gait or body movements, and the jury had an opportunity to make its own judgment regarding their distinctiveness” (id. at 678). The Appellate Division further concluded that the trial judge properly exercised his discretion when he declined to deliver an adverse inference charge with respect to the lost scratch 61, in light of the absence of evidence of bad faith or prejudice.

In November 2012, a different panel of the Appellate Division rejected Selbin’s legal sufficiency and weight-of-the-evidence claims (100 AD3d 537 [1st Dept 2012]). The court noted that Irizarry told the jury that he recognized Selbin, whom “he had seen ... in his apartment building on a regular basis for years,” by virtue of his “body type and . . . manner of walking,” and that, additionally, he “saw a portion of [Selbin’s] face that was left exposed, and heard him speak during the incident” (id. at 537) . Further, a few hours after the crime the police discovered Selbin in his apartment, “hiding in a closet underneath a pile of clothing” with “a bump and a fresh cut on his head,” an injury that was consistent with Irizarry’s testimony that he fended Selbin off with a blow to the head with a billiard ball (id. at 538) . The Appellate Division again concluded that the trial judge properly exercised his discretion in declining to deliver an adverse inference charge with respect to the lost scratch 61.

A Judge of this Court granted Christopher’s and Selbin’s separate motions for leave to appeal (20 NY3d 987 [2012]; 20 NY3d 1063 [2013]). We now affirm.

II

In People v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]), defendant, convicted of capital murder, contended that the trial judge committed reversible error in refusing to turn over the pretrial statements of three prosecution witnesses for purposes of cross-examination. At the time, our case law obligated the trial judge to inspect a prosecution witness’s pretrial statements and disclose to the defense any material at variance with the witness’s trial testimony (see People v Walsh, 262 NY 140, 149-150 [1933]). After making the requisite inspection, the trial judge in Rosario announced some “variances” between statements and testimony and told defense counsel that they might examine and use those portions of the statements containing these discrepancies.

Noting that in Jencks v United States (353 US 657, 667 [1957]), the United States Supreme Court had held that in federal prosecutions a defendant was entitled to inspect any statement made by a government witness hearing on the subject matter of the witness’s testimony, we commented that

“[t]he procedure to be followed turns largely on policy considerations, and upon further study and reflection this court is persuaded that a right sense of justice entitles the defense to examine a witness’ prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness’ testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination” (Rosario, 9 NY2d at 289; see also CPL § 240.45 [1] [a] [codifying our holding in Rosario]).

We ruled that the trial judge should have disclosed the requested statements in their entirety, and then considered whether the defendant was thereby prejudiced, “whether, in other words, there was a rational possibility that the jury would have reached a different verdict if the defense had been allowed the use of the witness’ prior statements” (Rosario, 9 NY2d at 291). Applying this standard, we concluded that the judge’s error did not prejudice the defendant (id.). Accordingly, we affirmed the conviction.

Over time, though, we “eschew[ed] harmless error analysis in cases arising during direct appeal in which the defendant was deprived of Rosario material at trial” in favor of a rule always requiring a new trial in this situation (People v Banch, 80 NY2d 610, 615 [1992]). We reasoned that “[h]armless error analysis in such cases would necessarily require weighing the potential impeachment value of the withheld material,” but “[a]n appellate court ... is ordinarily no better equipped than the trial court to make such an evaluation, and it was the inadequacy of the trial court in that regard—as compared to single-minded counsel for the accused—that compelled the Rosario holding” in the first place (id.). Thus, as stated in People v Ranghelle (69 NY2d 56, 63 [1986]), where

“the prosecution fails completely in its obligation to deliver [Rosario] material to defense counsel, the courts will not attempt to determine whether any prejudice accrued to the defense. The failure constitutes per se error requiring that the conviction be reversed and a new trial ordered . . . [T]he People’s good-faith efforts to locate, identify and discover all Rosario material does not excuse their failure to produce covered material.”

The so-called “Ranghelle Rule” proved controversial within the Court (see People v Jones, 70 NY2d 547, 553 [1987] [Bellacosa, J., concurring on constraint of “(t)he recently declared coup de grace that failure to turn over Rosario (9 NY2d 286) material ‘constitutes per se error requiring that the conviction be reversed’ ” (quoting Ranghelle, 69 NY2d at 63)]), and the law enforcement community. Finally, the legislature, as part of the Sexual Assault Reform Act (L 2000, ch 1), amended the Criminal Procedure Law to add a new section 240.75 to “overturn[ ]” the Ranghelle Rule, “a top priority for law enforcement officials for more than 15 years” (see Governor’s Press Release, 2000 NY Legis Ann at 4). Section 240.75 prohibits reversal where a defendant has been deprived of Rosario material at a trial or other proceeding absent a reasonable possibility that the nondisclosure materially contributed to the result.

Notably, the rule of per se reversal epitomized by Ranghelle never applied when Rosario material was lost or destroyed (see Banch, 80 NY2d at 616 [describing this situation as an exception to the Ranghelle Rule]). Rather, we required a showing of prejudice as a prerequisite to a sanction (see e.g. People v Martinez, 71 NY2d 937, 940 [1988]). Here, defendants argue that they were indeed prejudiced by the unavailability of the scratch 61, and so the trial judge abused his discretion when he declined to issue an adverse inference charge, the mildest sanction available. Additionally, Selbin urges that “there is a strong presumption that the defendant has been prejudiced to at least some degree” whenever Rosario material is lost or destroyed and, further, that this principle is implicit in our precedents, citing People v Wallace (76 NY2d 953, 955 [1990]) and People v Joseph (86 NY2d 565, 570-571 [1995]).

The defendant in Martinez was convicted of first-degree robbery as a result of an armed holdup of a cafe. Identification was the main issue in the case, and at the Wade hearing, the cafe’s cashier testified that he had described the robber to police officers immediately after the robbery, and that they wrote down what he said. This was apparently a surprise to both the defense attorney and the prosecutor, who had not previously known that any undisclosed Rosario material might exist. The defendant moved to preclude the cashier from testifying on the ground that the written record of his statement to the police officers had not been served upon him.

The court then held a hearing at which an officer testified that on the night of the crime, she and her partner had responded to a radio call for a robbery in progress. When they arrived at the cafe, the cashier came to their car and provided a description of the robber. She saw her partner “writing for a few seconds,” either in his memo book or a scratch 61, but did not see what he wrote; he immediately transmitted the cashier’s description of the robber over the radio, and the tape of the radio transmission was provided to the defendant (id. at 939). The officer who jotted something down was unavailable to testify, and despite diligent efforts, the People were never able to find any notes or follow-up reports he may have created. The judge denied defendant’s motion to preclude the cashier’s testimony, but gave an adverse inference charge to the jury. The defendant was convicted, and appealed the judge’s Rosario ruling.

We observed that

“it is no answer to a demand to produce that the material has been lost or destroyed. If the People fail to exercise care to preserve it and defendant is prejudiced by their mistake, the court must impose an appropriate sanction. The determination of what is appropriate is committed to the trial court’s sound discretion, and while the degree of prosecutorial fault may be considered, the court’s attention should focus primarily on the overriding need to eliminate prejudice” (Martinez, 71 NY2d at 940 [emphases added]).

Under the circumstances, we noted, the adverse inference charge overcame any “remote” possibility of prejudice owing to failure to turn over Rosario material, “if indeed there was any” (id.). This case, then, does not, as defendants suggest, stand for the proposition that a judge must impose a sanction whenever Rosario material is lost or destroyed, even if the possibility of prejudice is remote; or that an adverse inference charge must be given for the “inadvertent destruction” of a scratch 61.

In Haupt, decided the same day as Martinez, the defendant was found mentally incompetent to stand trial and confined to a mental institution for 16 years before he was tried and convicted of murder. During the lengthy lapse of time between arrest and trial, evidence, some of which was Rosario material, was lost or destroyed “through inadvertence” (Haupt, 71 NY2d at 930). On appeal, the defendant claimed that he was thereby deprived of due process and a fair trial, and the ability to cross-examine witnesses by use of their prior statements; he sought dismissal of the indictment. The Appellate Division held that “under the circumstances, there was no basis for dismissal of the indictment or the imposition of some lesser sanction upon the prosecution because of these losses” (128 AD2d 172, 173 [2d Dept 1987] [emphasis added]).

On appeal, we commented that this was not a case like Ranghelle where the People did not turn over statements “in their possession or within their power to produce,” and the remedy was automatic reversal and a new trial (71 NY2d at 930). We decided that “[w]hen . . . the defendant claims that the loss of the evidence deprived him of a fair trial, the court must consider a number of factors including the proof available at trial, the significance of the missing evidence and whether the loss was intentional or inadvertent” (id. at 931). To the extent that any of the lost material “might have a bearing” on the “crucial issue” at trial in this case, which was the defendant’s sanity at the time of the shooting, “defense counsel on cross-examination and later on summation, noted its absence and emphasized the People’s responsibility for its loss and the potential impact on the defense” (id.). This was enough for us to conclude that the defendant was not entitled to dismissal of the charge.

Relying on Haupt, Christopher argues that “[i]n fashioning an appropriate sanction for the People’s failure to preserve evidence, courts should consider the proof available at trial, the significance of the missing evidence, and whether the loss was intentional or inadvertent” (emphasis added). In Haupt, though, consideration of these factors resulted in a determination there was no prejudice and so no sanction was warranted.

Finally, Wallace and Joseph are cases where we concluded that the defendants were prejudiced by the deliberate destruction of Rosario material and so sanctions were called for. In Wallace, the Rosario material consisted of contemporaneous notes taken by an undercover officer to describe the individual from whom he bought drugs, and the arresting officer’s notes recording that description as the undercover officer broadcast it to him. The officers destroyed the notes after the arrest. The defendant asked for an adverse inference charge, the trial judge denied the request and the Appellate Division affirmed, concluding there was no fault or prejudice. On appeal to us, the “sole argument [made was that the] defendant was not prejudiced by the discarding of this material and we limit [ed] our review to that question” (Wallace, 76 NY2d at 955). Disagreeing with the lower courts, we concluded that “[u]nder the facts of this case,” the defendant was “impermissibly prejudiced” and therefore the trial judge abused his discretion when he declined to impose any sanction (id.).

In Joseph, we framed the issue as whether the People violate their Rosario obligations when a document subject to disclosure has been deliberately destroyed and “a testimonial reconstruction is required to establish its contents” (Joseph, 86 NY2d at 567). “Concluding that the fallibility of human memory makes the necessary flawless reconstruction all but impossible,” we held that “a document that has been destroyed can never be deemed the ‘duplicative equivalent’[] of one that exists and remains available for inspection” (id.). The unavailable Rosario materials in Joseph were envelopes in which the arresting officer placed vials of crack cocaine, and on which he wrote the arrestee’s name (there were two arrestees—an accused buyer and an accused seller) and the time and location of the arrest. The arresting officer testified that he destroyed these envelopes after transferring the information on them to his online booking sheet and complaint report.

First, we concluded that the officer’s testimony and the disclosed police reports were not duplicative equivalents of the discarded envelopes. Then we decided that, in light of the defense theory (misidentification of the buyer as the seller) and the facts of the case, the defendant had made a “colorable claim of prejudice” (id. at 571). We distinguished Haupt as a case where “the relevance of the lost document was marginal,” and emphasized the deliberate nature of the envelopes’ destruction (id. at 571-572). Citing Wallace, we therefore held that

“[g]iven the articulable showing of prejudice that the defendant made, the unavailability of the documents from which a less conjectural showing might have been made and, finally, the circumstances of the documents’ loss, the trial court’s refusal to impose the limited sanction [of an adverse inference charge] constituted an abuse of discretion as a matter of law” (id. at 572).

While the results of these cases differ, based on their particular facts, our rule is clear: nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice (see Martinez, 71 NY2d at 940; Banch, 80 NY2d at 616). If prejudice is shown, the choice of the proper sanction is left to the sound discretion of the trial judge, who may consider the degree of prosecutorial fault (Martinez, 71 NY2d at 940). The focus, though, is on the need to eliminate prejudice to the defendant (id.).

Here, defendants did not establish prejudice, as is their burden. Defendants fault the trial judge for not analyzing prejudice when he denied their request for an adverse inference charge, but they did not even mention the word. Instead, Christopher’s attorney requested the instruction simply because the scratch 61 could not be produced. The judge essentially (and correctly) ruled that inadvertent loss alone was insufficient to require a sanction.

Of course, it is difficult to imagine how defendants might have been prejudiced by the loss of the scratch 61, as the defense attorneys and the judge all no doubt knew. A scratch 61 is a handwritten complaint report that Officer Franco placed in a bin for typing, likely by a civilian employee of the police department. Defendants were provided the typewritten complaint report, which would have differed from the scratch 61 only if the typist made a mistake—i.e., the handwritten scratch 61 is not subject to editing before typing. Defendants therefore necessarily depend on a series of improbable events to create the prospect of prejudice. First, there must have been an error in transcription and that error must have resulted in omission from the complaint report of material that appeared in the scratch 61. Additionally, the omitted material must have contradicted something important that Irizarry said on the stand or in other statements made by or attributed to him. Based on such happenstance, Selbin suggests that perhaps “the scratch 61 stated that at some point Irizarry claimed that neither of the assailants said anything to him,” in which case the jury would have been less likely to believe that Selbin told him to “Give it up,” the only evidence of a threatened forcible taking. The dissent speculates that maybe the scratch 61 “contained a description of the gunman that did not match Christopher[’s appearance]” in which case “the People’s case against him would have crumbled” (dissenting op at 569).

If conjecture like this, built on a foundation of fortuity, is sufficient for a showing of prejudice, the loss or destruction of Rosario material is not just presumptively prejudicial, as Selbin advocates, it is per se prejudicial. And while Criminal Procedure Law § 240.75 does not directly apply in a case where the claim relates to the proper sanction when Rosario material has been lost to the defendant’s prejudice, its enactment clearly signals the legislature’s antipathy toward per se rules leading to the reversal of convictions for Rosario violations.

Finally, we have examined and consider to be without merit defendants’ claims that their respective attempted robbery convictions are not supported by legally sufficient evidence, and Selbin’s claim that the judge’s identification charge with respect to him was improper.

Accordingly, the orders of the Appellate Division should be affirmed.

Chief Judge Lippman

(dissenting in part). I would find that the trial court erred in failing to give the requested adverse inference instruction as a minimal sanction for the failure to turn over the lost “scratch 61” report. This error was harmless as to Selbin Martinez in light of the overwhelming evidence of his guilt. However, given that the evidence against Christopher Martinez was far from overwhelming, the error cannot be considered harmless as to him. Therefore, I would reverse Christopher’s conviction.

Upon discovering that the police officer had filled out a handwritten “scratch 61” that had not been turned over to the prosecution and which could not be located, defense counsel requested that the court give the jury an adverse inference instruction. The court denied the request. Defendants argue that the “scratch 61” was Rosario material and that, had it been produced, as is required, it would have provided additional grounds for cross-examination of complainant.

The People have an obligation to preserve Rosario material and to produce it upon demand (see People v Martinez, 71 NY2d 937, 940 [1988]). “If the People fail to exercise care to preserve it and defendant is prejudiced by their mistake, the court must impose an appropriate sanction” (Martinez, 71 NY2d at 940 [emphasis added]; see also People v James, 93 NY2d 620, 644 [1999]). When deciding upon a sanction, “the court’s attention should focus primarily on the overriding need to eliminate prejudice to the defendant” (Martinez, 71 NY2d at 940).

As the majority points out, the per se reversal (or Ranghelle) rule never applied to lost Rosario material (see majority op at 563). Rather, “some showing of prejudice is essential” in cases where Rosario material has not been appropriately preserved (see People v Joseph, 86 NY2d 565, 571 [1995]). However, we have also observed that, when the document at issue is in fact unavailable, it may be difficult for the defendant to articulate a concrete claim of prejudice, since he cannot know what information the lost document contained (see Joseph, 86 NY2d at 571). We therefore recognized that some degree of conjecture is inherent in an objection on this basis (see Joseph, 86 NY2d at 571). “Since it was the conduct of the police that resulted in the loss of the [document] and made it impossible to know whether the information [it] contained was consistent with the People’s position at trial, the People cannot now be heard to complain that the defendant’s showing of prejudice is not sufficiently definite and clear” (Joseph, 86 NY2d at 571 [citation omitted]).

The majority opinion cannot be squared with this reasoning. The majority simply concludes that, “it is difficult to imagine how defendants might have been prejudiced” (majority op at 567). This reflects a deficit of imagination: if, for example, the “scratch 61” contained a description of the gunman that did not match Christopher, the People’s case against him would have crumbled. Moreover, the majority’s ruling provides absolutely no incentive to retain these types of forms. Given the loss of the material, defendants are left to speculate as to what value that document may have held. It simply is not a satisfactory result to penalize defendant for being unable to establish a concrete injury. Particularly in this case, where the document was prepared between the two defendants’ arrests and complainant’s identification of Christopher was so delayed, the handwritten complaint report might have been extremely useful. Moreover, the evidence against Christopher was thin and the sanction requested was a modest one. The trial court did not invoke lack of prejudice as a basis for its denial; it merely stated “there is a reason ... he doesn’t have it anymore.” Under the circumstances, it was an abuse of discretion for the trial court to deny the requested charge. Similar to the situation presented in Martinez, although the prospect that Christopher suffered prejudice by the loss of the “scratch 61” might have been “remote,” that possibility would have been obviated by the requested jury instruction (see 71 NY2d at 940).

Here, identification was the central issue. The only evidence against Christopher, aside from the nonincriminating fact that he is Selbin’s brother, was complainant’s testimony identifying Christopher by his “awkward” way of jumping back. The gunman’s only feature that was not covered by a mask were his eyes, which complainant specifically testified he did not look at because he was focusing on the gun. The gunman did not make a sound, nor did he sustain any injury that linked him to the incident. Moreover, despite complainant’s claim that he knew the gunman was Christopher, he did not provide Christopher’s name to the police until after Selbin’s arrest. In the absence of overwhelming evidence, “there is no occasion for consideration of any doctrine of harmless error” (People v Crimmins, 36 NY2d 230, 241 [1975]).

In People v Christopher Martinez: Judges Graffeo, Smith and Pigott concur with Judge Read; Chief Judge Lippman dissents and votes to reverse in an opinion in which Judges Rivera and Abdus-Salaam concur.

Order affirmed.

In People v Selbin Martinez-. Judges Graffeo, Smith and Pigott concur with Judge Read; Chief Judge Lippman concurs in result in a separate opinion in which Judges Rivera and Abdus-Salaam concur.

Order affirmed.

      . Irizarry’s son, however, was unable to identify either perpetrator.

      . As related by Christopher’s attorney, on the tape of the 911 call Irizarry is heard to say “I think I know who they are . . . Yeah they were wearing masks and a hat and glasses and everything . . . but I think I know who they are.” As noted later, the jury heard the tape of the 911 call.

      . Irizarry testified at trial that he did not observe any cuts on Selbin’s face when he saw him the previous day.

      . It is not evident from the record when exactly Irizarry named Christopher as the other perpetrator. At trial, Irizarry attributed his delay in identifying Selbin and Christopher by name to the shock and trauma he experienced in the immediate aftermath of his encounter with them, and fear of reprisal.

      . The Rosario material at issue in Ranghelle was a complaint report, which was given to defense counsel after the evidence closed and before summations.

      . Specifically, section 240.75 states that
      “[t]he failure of the prosecutor ... to disclose statements that are required to be disclosed [under the Rosario rule] shall not constitute grounds for any court to order a new pre-trial hearing or set aside a conviction, or reverse, modify or vacate a judgment of conviction in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding.”

      . We never applied the rule of per se reversal in cases where the withheld Rosario material was the “duplicative equivalent” of other material made available to the defendant (see People v Consolazio, 40 NY2d 446, 454 [1976]; see also Banch, 80 NY2d at 616-617 [describing the duplicative-equivalent rule as another of the rare exceptions to per se reversal for Rosario violations]).

      . There was a vigorous dissent in this case. The dissenting judge would have held that the defendant did not, in fact, show prejudice as a result of the destruction of the envelopes, and therefore would have affirmed the defendant’s conviction (see Joseph, 86 NY2d at 573 [Levine, J., dissenting]).