adverse inference instruction in New York

2026Further, we conclude that defense counsel was not ineffective in failing to request an adverse inference instruction with respect to the People's failure to preserve complainant's cell phone and preserve metadata from video clips obtained from the cell phone, inasmuch as that request had " 'little or no chance of success' " ( People v Caban , 5 NY3d 143, 152 [2005]; see People v Jordan , 232 AD3d 1253 , 1255 [4th Dept 2024], lv denied 43 NY3d 930 [2025]). "[A] permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably li

2024Even assuming, arguendo, that the majority is correct in asserting that defense counsel likely would have been successful in obtaining some relief on the motion, such as an adverse inference instruction ( see generally People v Handy , 20 NY3d 663, 670 [2013]), as a result of the People's failure had counsel chosen to pursue that strategy ( see generally People v Viruet , 29 NY3d 527, 532-533 [2017]), we do not agree that the withdrawal [*3]of the motion rendered counsel ineffective.

2024In imposing spoliation sanctions, "courts possess broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence, including [precluding] proof favorable to the spoliator to restore balance . . . [and] employing an adverse inference instruction at the trial" ( Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 551 [2015]; see also Ortega v City of New York , 9 NY3d 69, 76 [2007]; CPLR 3126).

2023"New York courts therefore possess broad discretion to provide proportionate relief to the party deprived of the lost evidence, such as precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action" ( Ortega v City of New York , 9 NY3d at 76 ; see Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 551 ).

2018The court appropriately exercised its discretion in denying defendant's request for an adverse inference instruction concerning the People's failure to preserve a tape of a 911 call to police and the radio run transmission that was broadcast in response to it, since there was no bad faith or lack of diligence on the part of the People ( see People v Martinez , 71 NY2d 937, 940 [1988]; People v Marengo , 276 AD2d 358, 359 [2000] , lv denied 95 NY2d 936 [2000]), and defendant has not established that he was prejudiced by the absence of the tape ( see People v Martinez, 22 NY3d 551, 567 [2014]).

2006The court’s delivery of an adverse inference instruction to the jury as a sanction for the loss of a portion of an investigating officer’s notes was a proper exercise of discretion (see People v Martinez, 71 NY2d 937, 940 [1988]), and preclusion of the officer’s testimony was unwarranted.

2026BARROS, J.P., concurs in part and dissents in part, and votes to affirm the order insofar as appealed from, with the following memorandum: "Our state trial courts possess broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence, including the preclusion of proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action" ( Pegasus Aviation I, Inc. v Varig Logist

2024In imposing spoliation sanctions, "courts possess broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence, including [precluding] proof favorable to the spoliator to restore balance . . . [and] employing an adverse inference instruction at the trial" ( Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 551 [2015]; see also Ortega v City of New York , 9 NY3d 69, 76 [2007]; CPLR 3126).

2026Further, we conclude that defense counsel was not ineffective in failing to request an adverse inference instruction with respect to the People's failure to preserve complainant's cell phone and preserve metadata from video clips obtained from the cell phone, inasmuch as that request had " 'little or no chance of success' " ( People v Caban , 5 NY3d 143, 152 [2005]; see People v Jordan , 232 AD3d 1253 , 1255 [4th Dept 2024], lv denied 43 NY3d 930 [2025]). "[A] permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably li

2022A trial court typically must issue an adverse inference instruction to penalize the People for failing to present certain evidence at trial ( see People v Durant , 26 NY3d at 347 ).

2024In considering defendant's claim of ineffective assistance, we must "avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" ( People v Baldi , 54 NY2d 137, 146 [1981]).

2015We reject defendant’s contention that trial counsel was ineffective for failing to move to reopen the suppression hearing (see generally People v Baldi, 54 NY2d 137, 147 [1981]).

2018The court appropriately exercised its discretion in denying defendant's request for an adverse inference instruction concerning the People's failure to preserve a tape of a 911 call to police and the radio run transmission that was broadcast in response to it, since there was no bad faith or lack of diligence on the part of the People ( see People v Martinez , 71 NY2d 937, 940 [1988]; People v Marengo , 276 AD2d 358, 359 [2000] , lv denied 95 NY2d 936 [2000]), and defendant has not established that he was prejudiced by the absence of the tape ( see People v Martinez, 22 NY3d 551, 567 [2014]).

2018The trial court providently exercised its discretion in declining to provide an adverse inference instruction based on a lost page of an officer's notepad. "[N]onwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice" ( People v Martinez , 22 NY3d 551, 567 [2014]), and here defendant made no such showing.

2020Defendant was not prejudiced because the Sprint report afforded him sufficient opportunity to impeach the victim's testimony, and it was read into the record ( see People v Brown , 92 AD3d 455, 456 [1st Dept 2012], lv denied 18 NY3d 955 [2012]) .

2019Defendant was not prejudiced, because the Sprint report afforded him sufficient opportunity for impeachment ( see People v Brown , 92 AD3d 455, 456 [1st Dept 2012] lv denied 18 NY3d 955 [2012]).

2015With respect to defendant’s contention that the court erred in denying his request for an adverse inference instruction regarding the fire investigator’s failure to record the interrogation of defendant, “ [t] his Court has repeatedly determined . . . that the failure to record a defendant’s interrogation electronically does not constitute a denial of due process . . . , and thus an adverse inference charge was not warranted” (People v Nathan, 108 AD3d 1077 , 1078 [2013], lv denied 23 NY3d 966 [2014] [internal quotation marks omitted]; see People v McMillon, 77 AD3d 1375, 1375 [2010], lv denie

2015With respect to defendant’s contention that the court erred in denying his request for an adverse inference instruction regarding the fire investigator’s failure to record the interrogation of defendant, “ [t] his Court has repeatedly determined . . . that the failure to record a defendant’s interrogation electronically does not constitute a denial of due process . . . , and thus an adverse inference charge was not warranted” (People v Nathan, 108 AD3d 1077 , 1078 [2013], lv denied 23 NY3d 966 [2014] [internal quotation marks omitted]; see People v McMillon, 77 AD3d 1375, 1375 [2010], lv denie

2015We note that defendant failed to preserve for our review his contention that he was denied the right to present a defense because “[he] did not raise th[at] constitutional claim [ ] in the trial court” (People v Lane, 7 NY3d 888, 889 [2006]; see People v Norcutt, 115 AD3d 1306, 1309 [2014], lv denied 23 NY3d 966 [2014]), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

2015We note that defendant failed to preserve for our review his contention that he was denied the right to present a defense because “[he] did not raise th[at] constitutional claim [ ] in the trial court” (People v Lane, 7 NY3d 888, 889 [2006]; see People v Norcutt, 115 AD3d 1306, 1309 [2014], lv denied 23 NY3d 966 [2014]), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

2016We further conclude that the court properly declined to give defendant’s requested supplemental jury charge inasmuch as an adverse inference instruction was not warranted in this case (see generally People v Durant, 26 NY3d 341, 347 [2015]; People v Matos, 138 AD3d 426, 427 [2016], lv denied 27 NY3d 1135 [2016]).

2016We further conclude that the court properly declined to give defendant’s requested supplemental jury charge inasmuch as an adverse inference instruction was not warranted in this case (see generally People v Durant, 26 NY3d 341, 347 [2015]; People v Matos, 138 AD3d 426, 427 [2016], lv denied 27 NY3d 1135 [2016]).

2016In addition, defendant failed to preserve for our review his contention that the court’s instructions on the burglary count were erroneous inasmuch as he did not request that the court omit the “or remains” language from its proposed charge and failed to object to the charge as given on that ground (see People v Smith, 140 AD3d 1396, 1398 [2016]; People v Bonner, 256 AD2d 1219, 1220 [1998], lv denied 93 NY2d 871 [1999]).

2016In addition, defendant failed to preserve for our review his contention that the court’s instructions on the burglary count were erroneous inasmuch as he did not request that the court omit the “or remains” language from its proposed charge and failed to object to the charge as given on that ground (see People v Smith, 140 AD3d 1396, 1398 [2016]; People v Bonner, 256 AD2d 1219, 1220 [1998], lv denied 93 NY2d 871 [1999]).

2016In addition, defendant failed to preserve for our review his contention that the court’s instructions on the burglary count were erroneous inasmuch as he did not request that the court omit the “or remains” language from its proposed charge and failed to object to the charge as given on that ground (see People v Smith, 140 AD3d 1396, 1398 [2016]; People v Bonner, 256 AD2d 1219, 1220 [1998], lv denied 93 NY2d 871 [1999]).

2016In addition, defendant failed to preserve for our review his contention that the court’s instructions on the burglary count were erroneous inasmuch as he did not request that the court omit the “or remains” language from its proposed charge and failed to object to the charge as given on that ground (see People v Smith, 140 AD3d 1396, 1398 [2016]; People v Bonner, 256 AD2d 1219, 1220 [1998], lv denied 93 NY2d 871 [1999]).

2015We note that defendant failed to preserve for our review his contention that he was denied the right to present a defense because “[he] did not raise th[at] constitutional claim [ ] in the trial court” (People v Lane, 7 NY3d 888, 889 [2006]; see People v Norcutt, 115 AD3d 1306, 1309 [2014], lv denied 23 NY3d 966 [2014]), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

2015We note that defendant failed to preserve for our review his contention that he was denied the right to present a defense because “[he] did not raise th[at] constitutional claim [ ] in the trial court” (People v Lane, 7 NY3d 888, 889 [2006]; see People v Norcutt, 115 AD3d 1306, 1309 [2014], lv denied 23 NY3d 966 [2014]), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

2015Although the People would have a duty to protect such a video from being destroyed if it were in their possession (see generally People v Handy, 20 NY3d 663, 668-669 [2013]), the record fails to establish that either the police or the People had possession of any such video (see generally People v Nelson, 90 AD3d 954, 954 [2011], lv denied 18 NY3d 996 [2012]).

2015Although the People would have a duty to protect such a video from being destroyed if it were in their possession (see generally People v Handy, 20 NY3d 663, 668-669 [2013]), the record fails to establish that either the police or the People had possession of any such video (see generally People v Nelson, 90 AD3d 954, 954 [2011], lv denied 18 NY3d 996 [2012]).

2015We therefore conclude that defendant was not entitled to an adverse inference instruction because the record establishes that defendant had the opportunity to recover the vehicle and inspect it before it was sold at auction (cf. People v Handy, 20 NY3d 663, 669 [2013]; People v John, 288 AD2d 848, 849 [2001], lv denied 97 NY2d 705 [2002]).

2015We therefore conclude that defendant was not entitled to an adverse inference instruction because the record establishes that defendant had the opportunity to recover the vehicle and inspect it before it was sold at auction (cf. People v Handy, 20 NY3d 663, 669 [2013]; People v John, 288 AD2d 848, 849 [2001], lv denied 97 NY2d 705 [2002]).

2015Contrary to defendant’s contention, County Court did not abuse its discretion in denying his request for an adverse inference instruction concerning the People’s failure to preserve the motor vehicle that was driven by defendant at the time of his arrest (see generally People v Perkins, 124 AD3d 915, 915-916 [2015]).

2015Contrary to defendant’s contention, County Court did not abuse its discretion in denying his request for an adverse inference instruction concerning the People’s failure to preserve the motor vehicle that was driven by defendant at the time of his arrest (see generally People v Perkins, 124 AD3d 915, 915-916 [2015]).

2026Further, we conclude that defense counsel was not ineffective in failing to request an adverse inference instruction with respect to the People's failure to preserve complainant's cell phone and preserve metadata from video clips obtained from the cell phone, inasmuch as that request had " 'little or no chance of success' " ( People v Caban , 5 NY3d 143, 152 [2005]; see People v Jordan , 232 AD3d 1253 , 1255 [4th Dept 2024], lv denied 43 NY3d 930 [2025]). "[A] permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably li

2024Defense counsel cannot be deemed ineffective for failing to make a motion or argument that has little or no chance of success ( see People v Caban , 5 NY3d 143, 152 [2005]), and there was no basis for requesting an adverse inference instruction here because defendant failed to establish that the missing video evidence was destroyed by agents of the government ( see People v Jones , 211 AD3d 1594 , 1596-1597 [4th Dept 2022], lv denied 39 NY3d 1111 [2023]; People v Bonaparte , 196 AD3d 866, 869-870 [3d Dept 2021], lv denied 37 NY3d 1025 [2021]).

2024Defense counsel cannot be deemed ineffective for failing to make a motion or argument that has little or no chance of success ( see People v Caban , 5 NY3d 143, 152 [2005]), and there was no basis for requesting an adverse inference instruction here because defendant failed to establish that the missing video evidence was destroyed by agents of the government ( see People v Jones , 211 AD3d 1594 , 1596-1597 [4th Dept 2022], lv denied 39 NY3d 1111 [2023]; People v Bonaparte , 196 AD3d 866, 869-870 [3d Dept 2021], lv denied 37 NY3d 1025 [2021]).

2023Defendant's contention that he was entitled to an adverse inference instruction owing to the People's purported failure to turn over any GPS data from his cellular phone is also unsupported, as the record provides no indication that the People were in possession of such evidence ( see People v Bonaparte , 196 AD3d 866, 869-870 [3d Dept 2021], lv denied 37 NY3d 1025 [2021]; People v Wheeler , 124 AD3d 1136, 1140 [3d Dept 2015], lv denied 25 NY3d 993 [2015]).We also reject defendant's contention that he was entitled to lesser included offense jury instructions for manslaughter in the first and s

2023Plaintiff acted negligently in failing to preserve those messages when she purportedly broke her phone and the lost messages were relevant to contested issues in this action ( VOOM HD Holdings LLC v EchoStar Satellite L.L.C. , 93 AD3d 33, 41-43 [1st Dept 2012]).

2023Plaintiff acted negligently in failing to preserve those messages when she purportedly broke her phone and the lost messages were relevant to contested issues in this action ( VOOM HD Holdings LLC v EchoStar Satellite L.L.C. , 93 AD3d 33, 41-43 [1st Dept 2012]).

2018The court appropriately exercised its discretion in denying defendant's request for an adverse inference instruction concerning the People's failure to preserve a tape of a 911 call to police and the radio run transmission that was broadcast in response to it, since there was no bad faith or lack of diligence on the part of the People ( see People v Martinez , 71 NY2d 937, 940 [1988]; People v Marengo , 276 AD2d 358, 359 [2000] , lv denied 95 NY2d 936 [2000]), and defendant has not established that he was prejudiced by the absence of the tape ( see People v Martinez, 22 NY3d 551, 567 [2014]).

2015There was no bad faith or lack of diligence on the part of the People, and the defendant was not prejudiced, inasmuch as he was furnished with printed summary reports of the content of the calls, commonly known as sprint reports, which afforded him a sufficient opportunity to impeach the People’s witness (see People v Brown, 92 AD3d 455, 456-457 [2012]; People v Marengo, 276 AD2d 358, 359 [2000]).

2016The court’s adverse inference instruction was a suitable remedy for a detective’s inadvertent loss of the jacket that the victim had been wearing when he was shot, and the court properly exercised its discretion in declining to dismiss the indictment, declare a mistrial, or deliver a more lengthy charge (see People v Haupt, 71 NY2d 929, 931 [1988]; People v Kelly, 62 NY2d 516, 521 [1984]).

2004The court properly exercised its discretion in imposing an adverse inference instruction, but no further sanction, for the People’s loss of photos and map layovers that had been used for explanatory purposes at the first trial, since the prejudice to defendants was minimal (see People v Haupt, 71 NY2d 929 [1988]; People v Williams, 223 AD2d 491 [1996], lv denied 87 NY2d 1026 [1996], cert denied 519 US 952 [1996]).

2016The court’s adverse inference instruction was a suitable remedy for a detective’s inadvertent loss of the jacket that the victim had been wearing when he was shot, and the court properly exercised its discretion in declining to dismiss the indictment, declare a mistrial, or deliver a more lengthy charge (see People v Haupt, 71 NY2d 929, 931 [1988]; People v Kelly, 62 NY2d 516, 521 [1984]).

2009In urging this court to impose an adverse inference instruction, the People rely on People v Kelly ( 62 NY2d at 521 ), where the Court stated that “the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence.” With this, neither the defendant nor this court disagrees.

1996As we have previously noted, the touchstone for determining the remedy for the loss of Rosario material is the existence and degree of prejudice resulting from the loss (see, People v Wallace, 76 NY2d 953 ; People v Martinez, 71 NY2d 937 ). 1 Finally, there is no merit to defendant’s contention that reversible error was committed when the prosecutor elicited from Tirado, a key defense witness, that defendant had been incarcerated in the months preceding the trial.

1993Although defendant moved for a mistrial, he never requested an adverse inference instruction, and thus this is not a case where the court failed to exercise its discretion to impose an appropriate remedy (cf., People v Wallace, 76 NY2d 953 ).

2021However, we find that that the error was harmless ( see People v Ludwig , 24 NY3d 221, 230 [2014]; People v Crimmins , 36 NY2d 230 [1975]).

2021In any event, even assuming the trial court erred in declining to issue an adverse inference instruction, the error was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt ( see People v Crimmins , 36 NY2d 230, 241-242 [1975]; People v Suero , 159 AD3d 656 , 656 [2018], lv denied 31 NY3d 1122 [2018]).

2005The Rosario violation did not have any significant impact on defendant’s misidentification defense (see People v Harrell, 284 AD2d 248 [2001], lv denied 97 NY2d 657 [2001]; see also CPL 240.75), and defendant’s arguments to the contrary are unpersuasive (compare People v Goins, 73 NY2d 989 [1989]).

1994Since the written statement was disclosed to defendant at a time when defense counsel still could have the benefit of knowledge of the statement, the Rosario error does not mandate reversal, per se (cf., People v Goins, 73 NY2d 989 ; see, People v Ranghelle, 69 NY2d 56, 63 ).

2024Accordingly, we reverse the order entered May 7, 2020 , and remit the matter to the Supreme Court, Nassau County, for a determination on the merits of the decedent's motion pursuant to CPLR 3126 to strike the defendants' answer or, in the alternative, for an adverse inference instruction at trial for spoliation of evidence and for a new determination thereafter of the defendants' motion ( see Gille v Long Beach City School Dist. , 84 AD3d 1022, 1023 ).

2022Such a lesser sanction, or no sanction, is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense ( see May v American Multi-Cinema, Inc. , 191 AD3d at 658 ; Denoyelles v Gallagher , 40 AD3d 1027, 1027 ).