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Adverse Inference Instruction Required for New York Jail’s Destruction of Video Evidence

The New York Court of Appeals has held that when a criminal defendant acts with due diligence to demand the preservation of evidence that is reasonably likely to be of material importance, and the evidence is destroyed by the state, the defendant is entitled to an adverse inference jury instruction.

Dayshawn P. Handy was charged with assaulting three deputy sheriffs at the Monroe County Jail. The first two assaults took place on November 8, 2006 and the third incident occurred on January 8, 2007. Handy was acquitted by a jury on counts one and three, but convicted on count two.

The count two assault charge involved an altercation with Deputy Brandon Saeva, who approached Handy in his cell after Handy returned from the shower. Saeva noticed that the boxers and sandals Handy was wearing were not “jail issue.” According to Saeva, Handy refused to turn over the sandals and swung at him. They scuffled, and other deputies helped Saeva gain control of Handy.

Deputy Timothy Schiff testified that he assisted in subduing Handy after the altercation with Saeva. When he reached for Handy’s right leg to control him, Schiff said Handy kicked back, injuring his thumb. Handy, however, testified that Saeva swung at him and then tackled him; he also claimed he never kicked at the deputies. Handy was convicted of the assault charge involving Deputy Schiff, but not Saeva.

At issue was a video camera in the cell block that faced toward Handy’s cell, but not “directly” toward it. Saeva viewed the video recorded on November 8. He said that since the camera showed “only a part of his doorway, but not much,” the video captured a “very small part” of the incident. It was undisputed that the video was destroyed prior to trial.

Handy argued it was error for the trial court to refuse to charge the jury with an adverse inference instruction due to the missing video evidence with respect to the count two assault charge. The Court of Appeals agreed.

In response to the state’s assertion that it was “merely speculative” that the video was exculpatory, the Court noted that such speculation was caused by the destruction of the video, and that requiring an adverse inference instruction would mitigate the harm to the defendant caused by the loss of evidence.

“We hold that when a defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the defendant is entitled to an adverse inference charge,” the Court wrote.

Moreover, the Court of Appeals said its ruling would increase the chances that prison and jail staff will take whatever steps are necessary to ensure that video evidence is not erased or destroyed when it is foreseeable an incident will lead to a criminal prosecution.

Accordingly, Handy’s conviction was reversed and the case remanded for a new trial on the assault charge involving Deputy Schiff. See: People v. Handy, 20 N.Y.3d 663, 988 N.E.2d 879 (N.Y. 2013).

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