Majority Finds No Prejudice in Absence of Jury Charge

, New York Law Journal

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Lippman said Read's statement that it is "difficult" to imagine how the lost police report may have prejudiced Christopher Martinez "reflects a deficit of imagination." Had the reports contained a description of the gunman that was different than Martinez's own description, the prosecution's case against him would have "crumbled," Lippman wrote.

"Moreover, the majority's ruling provides absolutely no incentive to retain these types of forms," Lippman wrote. "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."

Giving an adverse inference instruction to the jury would have been an appropriate "minimal sanction" for the loss of the scratch 61 reports, Lippman said.

He was joined in his dissent in the Christopher Martinez case by Judges Sheila Abdus-Salaam (See Profile) and Jenny Rivera (See Profile).

Lippman said he would have reversed Martinez's conviction and ordered a new trial.

The three dissenters argued that the charge should have been given in the case of Selbin Martinez as well but concurred in the verdict, saying that the evidence was overwhelming and the trial judge's error was harmless.

Marisa Cabrera of the Center of Appellate Litigation represented Christopher Martinez. Rahul Sharma of the Office of the Appellate Defender argued for Selbin Martinez.

Assistant Bronx District Attorney Ravi Kantha represented the prosecution in both cases.

Christopher Martinez was convicted of attempted third-degree robbery and given 1 to 3 years in prison. Selbin Martinez was convicted of attempted second-degree robbery and was sentenced to 4 1/2 years in prison as a second felony offender.

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