It is alleged that on April 12, 2006, the three defendants were part of an undercover enforcement operation which, at the time, was a purported unlicensed massage parlor. After the defendants and other police officers arrested the owner of the establishment and seven of his female employees, those individuals were brought to the 72nd Precinct for processing. All individuals under arrest were to be charged with prostitution-related offenses that ostensibly occurred at the establishment.
While at the 72nd Precinct, the owner spoke with the third defendant Police Officer. The owner informed the Police Officer that he had a video surveillance system in his establishment. The Police Officer was told by the owner that this video system recorded the activity in the establishment at the time of the alleged sex crimes and that these recordings would exculpate him and his co-arrestees.
The individuals arrested for prostitution-related offenses were arraigned upon misdemeanor complaints in a Community Court in Brooklyn. Supporting depositions were filed in connection with their respective misdemeanor complaints. The supporting depositions, allegedly signed by the Lieutenant in an undercover capacity, affirm that the females charged in the complaint engaged an undercover — the Lieutenant — in conversations through which they offered him sex acts in exchange for money. All the criminal individuals arrested refused plea offers at their arraignment.
Subsequent to the arraignments in the Community Court, the Assistant District Attorney assigned to that court spoke with the Lieutenant to express his concerns about the cases. Specifically, the ADA noted issues regarding the supporting depositions wherein the Lieutenant affirmed that he had sex-related conversations with the women in question and he was offered sex by these women in exchange for money. The Lieutenant allegedly admitted to the ADA that, in fact, he did not have any sex-related conversations with the women. The ADA had a similar conversation with a Sergeant during which the Sergeant made only a seemingly innocuous reply that any problems with the prostitution cases were, in substance, the problem of the Assistant District Attorney.
On April 13, 2006, the three defendant police officers went to Eight Avenue in Brooklyn — next door to a massage parlor — under the alleged guise of a gambling investigation. Evidence was adduced before the Grand Jury that the three defendants broke the rear door of Eighth Avenue, entered and stole surveillance cameras, video recordings, a computer and other items. The evidence includes an interior video recording of the alleged break-in at 4214 Eighth Avenue, which also reflects the presence of three individuals who appear to be the defendants and were identified as such through the testimony of a police official.
A computer, allegedly obtained from 4214 Eighth Avenue, was recovered from the Lieutenant’s office at the Brooklyn South Vice Squad. Other computer equipment from 4214 Eighth Avenue was allegedly recovered from the Lieutenant’s residence and the residence of his girlfriend.
While the police recovered various computer equipment and recorded media, a significant amount of such items remained in the possession of the complaining witness, who is the owner of the target location.
The owner of the establishment, along with the females who were arrested at the location, had his criminal case dismissed. Further, he retained an attorney to represent him in a civil capacity in relation to the case.
The defendants were arraigned upon the indictment before the Court. A motion schedule for discovery and inspection of the Grand Jury minutes was established at that time. Pursuant to the representation of the People at arraignment, the videotape evidence was in their possession and would be produced to defense counsel. It is the computer equipment and recorded media that is the subject of the defendants’ preclusion motion. The Court made repeated, on-record orders to the People to disclose the entire video recording to defense counsel on November 3, 2006 and January 19, 2007. There was not a weapon in the case.
The defendants filed a joint motion based on the People’s failure to produce for inspection and/ or duplication, the entire video recordings of April 12, 2007 and April 13, 2007. The People filed a written response in opposition to the defendants’ motion. In one portion of their response, the People assert that in October of 2006, the owner of the establishment produced a videotape and VCR that were supposedly the original media and recording device. The videotape was inspected and found to be blank. The owner of the establishment had apparently advised the People that he did indeed have the original recording, but he had to find it, and that he would contact them. In January 2007, the owner, through his attorney, confirmed that he had provided the wrong tape and he would attempt to find the correct tape, but that it would be time consuming because he would have to review many tapes.
By written decision and order, dated April 16, 2007, the Court denied the defendants’ preclusion motion. The primary basis for the Court’s decision was the then apparent fact that the items in question were never in the custody and control of the People.
On May 23, 2007, the criminal defense counsel forwarded correspondence to the Court seeking a conference relative to new information provided by the owner to the People regarding the video evidence. The new information relates, in pertinent part, to a portable hard drive that was attached to the computer tower, which was allegedly removed from the owner’s business on April 13, 2006 by one of the defendants. The portable hard drive was supposedly attached to the outside of that computer tower by Velcro strips and connected to the tower via a USB cable. This source was never recovered by the People, who believe that it is somehow in the possession of one of the defendants. Moreover, a VCR was hidden in the ceiling that recorded video onto a VHS tape.
According to the People, the owner used a conversion device to convert the video contained in the videotape to a hard drive that was connected to a laptop computer. He subsequently kept the videotape in the ceiling VCR, and left his business with the external hard drive upon which the videotape was duplicated.
May 25, 2007 was the first time that the defense actually learned the manner in which the incident was recorded, despite orders from this Court and requests from defense counsel for that information (this was an approximate eight-month period).
On June 4, 2007, the parties were present before the Court for the conference requested by the defense counsel. The defense counsel repeated their request for a defense expert to inspect the computer and video evidence in the People’s possession and conduct a forensic examination of that evidence, because there was particular concern by the defense with regards to possible tampering. (The inspection request was agreed to by the People and ordered by the Court since September 2006.)
During various case conferences, the People repeatedly assured the Court and defense counsel that they would confer with the police and relay to all parties a specific proposal to allow a defense expert to conduct a forensic examination of the relevant evidence. However, one-year since the People were required to arrange the defense inspection, not only has the inspection not occurred, neither have the People set forth any proposal whatsoever for consideration by the Court and defense counsel.
One-year later and now facing preclusion of all computer and video evidence, the People merely filed an affidavit from an IAB officer with their August 10, 2007 response. The affidavit, however, is entirely conclusory and fails to cite any proposal for defense inspection and examination. It reads, that the originals of the computer and video evidence cannot, however, be released to the defense counsel. Due to the fragile nature of the above-listed evidence, there is a significant risk of alteration or damage if it is not handled properly.
There are absolutely no specific facts in the affidavit regarding the alleged fragility of the evidence, nor any mention of why a defense expert can or cannot inspect and/ or conduct a forensic examination of the items at the police facility or elsewhere, despite Court orders and defense demands for specific proposals.
Finally, as the defense counsel notes in his reply papers at paragraphs six, seven and ten, forensic copies of two computer towers that were made by IAB and provided to the former assigned ADA on February 5, 2007 were not disclosed, and defense counsel only became aware of them as a result of the IAB officer’s affidavit annexed to the People’s August 10, 2007 response. It was also the first time that the People disclosed to the Court and defense counsel the discrepancy regarding the date on the video.
Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction. The overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society. Indeed, preclusion of the People’s evidence is a severe sanction, which is not subject to appellate review. Therefore, the Court has given this matter careful and thorough consideration.
While Criminal Procedure Law authorizes a variety of sanctions to be issued for failure to comply with a Court’s discovery order, including the imposition of additional speedy trial time on the People, it is clear that under the facts of this case, the only appropriate sanction is preclusion. Not only must a court consider the prejudice caused to the defendants in fashioning an appropriate sanction, but it should weigh the degree of prosecutorial fault.
The lack of continuity between the assigned ADAs to the case, the fact that the Court had to repeatedly contact the People in order to receive a response to the defendants’ second discovery motion, and other factors already noted herein, demonstrate the People’s laissez faire attitude toward their constitutional and statutory obligations in this matter.
In balancing the various facts of this case to determine whether preclusion is appropriate, the Court has considered those cases cited by the People; however, those cases primarily pertain to various items of evidence that, while arguably significant, were not fundamental to those cases as a whole. Here, the computer and video evidence goes to the very heart of the People’s case; this evidence constitutes both the foundation and structural supports upon which the People’s case is built.
In any event, the discovery demands by the counsel and orders of the Court are self-explanatory and clear on their face, and the People’s failure to adhere to those demands and orders, regardless of their ignorance of computer terminology, requires preclusion in this case.
Based upon the facts of this case, and in weighing the arguments of counsel, the Court cannot countenance any sanction less than preclusion.
Accordingly, the defendants’ motion to preclude all computer and video evidence at trial, as well as all testimony related thereto, is granted. The defendants’ second motion is denied as academic.
Evidence can help solve cases faster. If evidences of a sex related crimes are tampered in any way and resulted to its inadmissibility, consult the Kings County Sex Crime Lawyer or the Kings County Criminal Attorney. Stephen Bilkis and Associates can also provide you with the Kings County Prostitution Lawyer if you need one to represent you in court.