People v. Gibbs

Murphy, P. J. (dissenting).

I would reverse and remand for a new trial.

The three vials of crack cocaine allegedly purchased from defendant-appellant were destroyed by the police after the case against another defendant arrested at the same time as appellant had concluded. The police laboratory report on the allegedly destroyed evidence was introduced, over objection. The court gave the following adverse inference charge to the jury with respect to the destroyed evidence:

“Under our law, the People have the burden of preserving evidence. You’ve heard testimony from a police officer in this case, the drugs had been destroyed and there was a failure on the part of the People to preserve those drugs and that evidence.

"You may consider the failure of the People to preserve this physical evidence in determining the weight to be given to the testimony. However, the failure of the People to preserve this *290evidence, the law permits, but does not require you to infer if you believe it proper to do so that had the drugs been preserved its’ contents would not support or would even contradict the testimony of the People’s witnesses on that issue.

"You may also, under our law, consider the explanation offered during the trial by the People for the failure to preserve the drugs. And if the explanation satisfies you, then you may disregard the People’s failure to preserve this evidence.”

This charge to the jury on the inference to be drawn with respect to the failure to preserve evidence was inadequate to eliminate the prejudice to the defendant from the destruction of the evidence. Where, as here, the defendant denied all connection to the illicit transaction, and there was no evidence either that the drugs were found upon him or vouchered to him, the court should have instructed the jury to draw an adverse inference to the effect that the failure of the People to preserve the evidence for defendant’s trial justified an inference that the drugs were not, in fact, traceable to him.