This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 60
The People &c.,
            Respondent,
        v.
Miguel Viruet,
            Appellant.




          Leila Hull, for appellant.
          Nancy Fitzpatrick Talcott, for respondent.




GARCIA, J.:
          Shortly after a fatal shooting took place, a law
enforcement agent collected video surveillance footage of the
crime scene but that evidence was lost prior to trial.   We now
consider whether, as a result, defendant was entitled to an
adverse inference jury instruction. We hold that, under the
circumstances, the trial court erred in failing to provide such
an instruction, but that this error was harmless.   For that

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reason, we affirm.
          Defendant was charged with, among other things,
intentional murder in the second degree and two counts of
criminal possession of a weapon in the second degree in
connection with a late-night shooting outside a Queens nightclub.
Earlier on the evening of the shooting, defendant's brother,
Stephen, was struck by an unknown assailant outside of the club.
When the club's bouncer was unable to identify the assailant,
Stephen called defendant and asked him to come to the club.
According to the bouncer, a short time later defendant pulled up
to the front of the club in a dark colored Honda, got out, and
immediately confronted him, demanding to know who hit his
brother. Several people from inside the club surrounded defendant
prompting him to drive off. As defendant drove away, however, he
warned that he was "coming back." Approximately 10 to 15 minutes
later, someone near the club yelled "they're back."   At that
moment, the victim, the bouncer, and another witness, were
standing by the front entrance of the club when an individual
across the street fired nine shots in their direction. The 19-
year-old victim, who was trying to get through the door into the
club, was shot and died a short time later.
          The club's bouncer identified defendant in a photo
array hours after the shooting and in a lineup following
defendant's arrest approximately two months later. He testified
at trial that although he did not see the shooter's face


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completely, he "could tell by what [the shooter] was wearing and
the way he looked that it was the same person that was driving
the [Honda]." However, he admitted on cross-examination that
despite his prior identifications, he could not say for sure
whether defendant was the shooter by looking at his face because
he "didn't see across the street." The other witness, in
identifying defendant, testified that he had a "good view" of
defendant at the time of the shooting, could see where the
bullets were coming from, and was able to observe defendant's
face. Although the witness did not know defendant, he knew
defendant's brother "from around the way," and had seen him on 2
or 3 prior occasions.1
          The People also called one of defendant's childhood
friends who had been arrested approximately two months after the
shooting on an unrelated gun charge. Pursuant to a plea deal, the
witness agreed to testify for the prosecution at defendant's
trial. According to his detailed testimony, the day after the
shooting, defendant confessed that he and his brother were
involved in an altercation at the club and that defendant had
fired his weapon "in th[e] direction" of someone who was yelling
at him.
          Prior to trial, defendant timely requested disclosure
of the club's surveillance footage from the night of the murder

     1
       Nothing in the record equates, as the dissent contends, to
a concession by the witnesses that "defendant and his brother
could be mistaken for one another" (dissenting op at 7).

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and the District Attorney's office requested the same from the
police department. The arresting officer, Detective Ragab, who
just hours after the shooting viewed and obtained a copy of the
video taken from a camera located outside the club's front door,
could not locate the video. Detective Ragab explained that he did
not voucher the video pursuant to police department policy
because he "just did not get to it." Though he attempted to
obtain another copy, the club had shut down and he could not
locate the owner.
          Several witnesses nevertheless provided some
information about the lost video. One witness testified that the
club had a "pretty good surveillance system" with a camera
located by the awning above the door showing the front of the
bar. Detective Ragab testified that he watched the video and
could see people going in and out of the club during the course
of the evening as well as people running inside at the time of
the shooting. He claimed the area covered by the camera "barely
leaves the sidewalk" but acknowledged that there was no way
without the video to determine how far out the coverage extended.
The bouncer -- who had also watched the video -- testified that
the footage captured the victim, the other trial witness, and him
at the front door as the shots were fired. He also testified that
the camera did not face in the direction of the location where he
saw defendant firing his weapon. There was no testimony regarding
whether the earlier confrontations with the bouncer were captured


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on the surveillance footage.
          At a pre-charge conference, defense counsel requested
an adverse inference charge based on the missing video, arguing
that there was evidence the video might have captured the events
of the night and that without it, it was impossible to determine
precisely what was on it, and that the jury should be informed
that they could assume it was beneficial to defendant. The court
denied the request for the charge, stating that it would only be
appropriate if the evidence, had it been produced, would have
been favorable to defendant. The court explained that the charge
was not warranted because there was no testimony that the video
would have shed light on the identity of the shooter. The jury
convicted defendant of intentional murder and both gun possession
counts.
          The Appellate Division unanimously affirmed, holding
that the lower court "properly declined to give an adverse
inference charge" because "there was no evidence that the video
camera recorded anything relevant to the case, and the evidence
suggested otherwise" (People v Viruet, 131 AD3d 714, 715 [2d Dept
2015]). A Judge of this Court granted leave to appeal (26 NY3d
1093 [2015]) and, for the reasons discussed below, we now affirm.
          Defendant relies on our decision in People v Handy,
pointing to our holding 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


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has been destroyed by the State, the defendant is entitled to an
adverse inference charge" (20 NY3d 663, 665 [2013]). In such
circumstances, the charge is no longer "discretionary," but is
"mandatory upon request" (People v Blake, 24 NY3d 78, 82 [2014]).
We agree that the rule in Handy applies here and that failure to
give the instruction was error.
          Initially, we reject the People's argument that the
video was not discoverable because they did not intend to use it
at trial. Given that there is no indication that the prosecutors
had the opportunity to view the video prior to its request to the
police to locate it in the file, it is difficult to credit the
argument that, without ever having seen it, they never intended
to use it. Moreover, such a ruling would undermine the incentive
for the State to preserve evidence, as it would provide the
People with the opportunity to avoid issues of lost evidence by
simply claiming they had no intent to use it (see Handy, 20 NY3d
at 669). Likewise, we reject the People's argument that they were
not required to preserve the video because, unlike the prison
video in Handy, it was created by a third party. Once the police
collected the video, the People had an obligation to preserve it
(see People v Kelly, 62 NY2d 516, 520 [1984]; CPL 240.20 [1]
[g]).
          Under these circumstances -- where defendant acted with
due diligence by requesting the evidence in discovery and the
lost evidence was video footage of the murder defendant was


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charged with committing -- it cannot be said that the evidence
was not "reasonably likely to be of material importance" (Handy,
20 NY3d at 665). According to the trial testimony, the camera
captured the moment when the victim was shot and the location of
the two eyewitnesses at the time of the shooting. There was also
testimony that the video contained footage of people going in and
out of the club throughout the course of the night, making it at
least possible that the video captured the earlier incident
involving defendant and the bouncer -- a key issue in the
sequence of events. Contrary to the determination of the
Appellate Division, a video of the shooting and of the
eyewitnesses at or around the time of the murder is certainly
"relevant to the case" (Viruet, 131 AD3d at 715) and is
sufficient to satisfy the standard set out in Handy. Moreover, as
in Handy, testimony concerning what appeared on the video came in
large part from a witness whose own actions "created the need to
speculate about its contents" (Handy, 20 NY3d at 669).
Accordingly, the trial court erred in failing to give an adverse
inference instruction.
          However, given the strength of the People's case, the
error was harmless. "Errors of law of nonconstitutional magnitude
may be found harmless where 'the proof of the defendant's guilt,
without reference to the error, is overwhelming' and where there
is no 'significant probability . . . that the jury would have
acquitted the defendant had it not been for the error'" (People v


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Byer, 21 NY3d 887, 889 [2013], quoting People v Crimmins, 36 NY2d
230, 242 [1975]).
          In addition to the eyewitness accounts described above,
the People presented testimony that defendant confessed to the
shooting. That witness's account was consistent with the version
of the relevant events provided by the witnesses to the shooting.
Additionally, the shooting occurred less than 20 minutes after an
earlier altercation at the club ended with defendant threatening
to return and immediately after someone nearby yelled "they're
back." In light of this proof, such a permissive adverse
inference instruction to the jurors that they might have but were
not required to infer that the lost video would have been
favorable to the defense would not have created a "significant
probability . . . that the jury would have acquitted []
defendant" (Crimmins, 36 NY2d at 241-242).
          Accordingly, the order of the Appellate Division should
be affirmed.




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People v Miguel Viruet
No. 60




WILSON, J.(dissenting):
          I fully concur in the majority's excellent exposition
of why the trial court erred in failing to provide an adverse
inference jury instruction.   However, I cannot agree that the
error was harmless.   I therefore would reverse and remit for a
new trial.
          As explained by the majority, defendant diligently
requested from the People a copy of the nightclub's video
footage, which was "reasonably likely to be of material
importance" (People v Handy, 20 NY3d 663, 665 [2013]).    Defendant
was, therefore, entitled to an adverse inference charge, and the
charge was "mandatory upon request" (People v Blake, 24 NY3d 78,
82 [2014]).   As the majority holds, defendant should have
received the requested charge, and the trial court's failure to
do so amounted to error.1


     1
        Further, the fact that the trial court allowed defense
counsel on cross examination and later on summation to argue
about the absence of the videotape was not an adequate remedy for
the court's failure to give the adverse inference charge. "[A]
trial counsel's appeal to the jury during summation is not
ordinarily a substitute for the appropriate jury charge by the
court" (DeVito v Feliciano, 22 NY3d 159, 167 [2013]). Indeed,
jurors are routinely admonished that "arguments of counsel made

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          I do not agree with the majority, however, that the
error was harmless.   In situations where evidence of guilt is
overwhelming, "an error is prejudicial [to the defendant] . . .
if the appellate court concludes that there is a significant
probability, rather than only a rational possibility, in the
particular case that the jury would have acquitted the defendant
had it not been for the error or errors which occurred" (People v
Crimmins, 36 NY2d 230, 242 [1975]).    However, "unless the proof
of the defendant's guilt, without reference to the error, is
overwhelming, there is no occasion for consideration of any
doctrine of harmless error" (id. at 241).   "'[O]verwhelming proof
of guilt' cannot be defined with mathematical precision" and
"does not invite merely a numerical comparison of witnesses or of
pages of testimony" (id.).   Instead, "the nature and the inherent
probative worth of the evidence must be appraised.   As with the
standard, 'beyond a reasonable doubt', the recourse must
ultimately be to a level of convincement" (id.).   Thus, to be


during the course of trial are not evidence and must not be
considered by you as such" (1 CJI2d[NY] Arguments of Counsel,
§ 5.13), whereas the court "is responsible for explaining the
law, not the lawyers . . . . [Y]our sworn duty as jurors is to
follow [the court's] instructions on the law" (NY Criminal Jury
Instructions & Model Colloquies, Model Instructions, Final
Instructions: Pre-Summation Instructions, at i-iii, available at
http://www.nycourts.gov/judges/cji/5-SampleCharges/CJI2d.Final_In
structions.pdf [accessed May 18, 2017]; see e.g. People v
Williams, 29 NY3d 84 [2017]; United States v Kennedy, 234 F3d
1263 [2d Cir 2000]). Thus, we have long recognized that "'[t]he
court's charge is of supreme importance to the accused'" (People
v Owens, 69 NY2d 585, 589 [1987], quoting People v Odell, 230 NY
481, 487 [1921]).

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overwhelming, "the quantum and nature of proof, excising the
error, [must be] so logically compelling and therefore forceful
in the particular case as to lead the appellate court to the
conclusion that a jury composed of honest, well-intentioned, and
reasonable men and women on consideration of such evidence would
almost certainly have convicted the defendant" (id. at 241-242
[internal quotation marks omitted]).   Here, the majority's
recitation of the facts paints an incomplete picture, and
effectively substitutes this Court for the trier of fact.
Although the evidence would support a jury verdict of guilt, it
was not overwhelming.
           Much of the People's proof came from two eyewitnesses
-- Xavier White, a patron at the nightclub where the shooting
took place, and David Herbert, the club's bouncer -- who both
testified that they had viewed the gunman only for a few seconds,
at most.   Defendant was a stranger to both of them.   The shooting
occurred at nighttime, and the shooter was across the street from
the entrance to the bar.   Mr. White asserted that, when the
gunshots began, he was facing the front of the bar, turned
around, saw the shooter for "split seconds," and then ran back
inside the bar.   Notably, Mr. Herbert admitted, on cross
examination, that he could not know for sure who the shooter was
because he "did not see his face completely" and "didn't see
across the street."
           Messrs. White and Herbert based their identification of


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the gunman on their interactions with defendant earlier that
evening.   However, according to their testimony, neither witness
had seen defendant prior to that night and both witnesses had
only fleeting encounters with defendant earlier in the evening.
Further, both witnesses acknowledged that defendant and his
brother, Stephen, who had a verbal altercation with Mr. Herbert
earlier that evening, looked very much alike.   Mr. White
testified that defendant and Stephen "looked like twins" and
"[t]he only difference [between them] was one being taller and
the other being shorter."   Mr. Herbert, when presented with two
photo arrays the morning after the shooting, identified
defendant as the shooter from one array, but identified a
different brother of defendant's, who was in prison at the time
of the shooting, as the individual involved in the earlier
altercation from the other array.   From the testimony of the two
eyewitnesses, a fair conclusion would be that someone with a
familiar resemblance to defendant was the shooter, but both
eyewitness demonstrated an inability to distinguish one brother
from the other(s).
           Those eyewitnesses also offered inconsistent testimony
as to the events leading up to the shooting, and provided
different descriptions of what defendant wore and the car he
drove that night.    Mr. Herbert testified that defendant arrived
with two other people in a "dark black" or "dark blue" Honda,
whereas Mr. White testified that only defendant and a woman


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exited a "dark green" Honda; he believed no one else was in the
car.    Mr. White testified that defendant had on a dark blue shirt
with a navy stripe, but could not recall if it was a polo or
button-down shirt.    Mr. Herbert, on the other hand, described
defendant as wearing a "blue sweater."    Mr. Herbert stated that
he had a conversation with defendant that lasted "probably [a]
couple of seconds" and then defendant went to speak with his
brother Stephen, who was across the street.    According to Mr.
Herbert, after defendant came back over to the nightclub, a crowd
began to form as he and defendant argued, and then defendant
left.    Mr. White testified differently: that defendant said he
would return.
            Robert Garcia, who was with defendant the night of the
shooting, also testified at the trial.    Robert Garcia stated that
he, defendant, and defendant's girlfriend had been at another
club earlier that night.    He said that defendant had been frisked
prior to entering that club and, upon leaving, police officers
stopped him and defendant at a check point around the corner; the
officers checked the car and let them proceed.    He further
testified that he, defendant, and defendant's girlfriend all
arrived at the nightclub in defendant's car, they stayed there
"less than five minutes" in total, and then left with Stephen and
Stephen's friend.    Robert Garcia stated that defendant dropped
off Stephen and Stephen's friend approximately three blocks from
the nightclub, and then defendant dropped Robert Garcia off


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approximately ten blocks from there.
               The People also called a cooperating witness, Jesse
Garcia, a childhood friend of defendant, who testified that
defendant had confessed to returning to the club and shooting a
gun.       However, Jesse Garcia admitted that, although he met with
the police more than once prior to his arrest for an unrelated
crime, he did not mention defendant's confession.       Only after
Jesse Garcia's arrest did he disclose defendant's purported
confession, and he then obtained a reduced sentence in exchange
for his cooperation.2      Jesse Garcia's teary, choking delivery of
his testimony against defendant, though consistent with
truthfully providing testimony to send his friend to prison, is
equally consistent with the guilt accompanying false testimony
against his friend offered to reduce his own prison time.       Jesse
Garcia conceded that he did not know whether defendant actually
committed the crime, and further testified that Stephen and
defendant looked alike, so it was possible that they could be
mistaken for one another at a distance.
               Given the standard of proof beyond a reasonable doubt,
the totality of the evidence in this case would support a verdict
of either guilt or innocence.       The evidence established that
defendant and his look-alike brother were in the vicinity of the
crime; defendant had just been searched at a different club and

       2
        Although he was facing 5½ to 15 years in prison, Jesse
Garcia pleaded guilty in exchange for a reduced prison sentence
of 1½ to 3 years.

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then by the police, who found no weapon; and defendant's brother
had more of an altercation at the club than did defendant.      The
majority cites the eyewitness accounts and defendant's statements
made to Jesse Garcia in support of its conclusion that the
evidence in this case was overwhelming (see majority op at 7-8).
However, "mistaken eyewitness identifications play a significant
role in many wrongful convictions" (People v Santiago, 17 NY3d
661, 669 [2011]; see also People v Marshall, 26 NY3d 495, 502
[2015] ["Wrongful convictions based on mistaken eyewitness
identification pose a serious danger to defendants and the
integrity of our justice system"]).    Here, the eyewitnesses
essentially conceded that defendant and his brother could be
mistaken for one another.   Further, neither could conclusively
say that defendant actually committed the crime -- Mr. Herbert
did not see the shooter's face, and Mr. White, who testified that
he saw the gunman's face in the dark from across the street, did
so for only "split seconds" before running away into the bar
under stressful and chaotic circumstances including gunfire.      As
to Jesse Garcia, he raised his account of defendant's confession
with the police only after he had been arrested and was facing up
to 15 years in prison.   A jury could plausibly credit or
discredit any of this testimony.
          That the shooting occurred 20 minutes after defendant
and his brother had left the nightclub lends just as much
support, if not more, to the defense's theory that someone else


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committed the shooting -- namely, Stephen.        Defendant dropped off
Stephen and Stephen's friend only three blocks from the nightclub
and then drove 10 more blocks to drop off Robert.         Additionally,
just prior to the shooting, someone yelled "they're back" -- not
"he's back."     Thus, it is just as plausible that Stephen and his
friend -- who were just a few blocks away -- returned to the
nightclub, and not defendant.
            Where, as here, evidence, even if substantial, is not
overwhelming, that ends the harmless error inquiry, and defendant
is entitled to a new trial.    To act otherwise is to usurp the
jury's role as trier of fact.     The question is not whether we
think that giving the requested instruction would have changed
the outcome: that question is for the jury to determine on
retrial, weighing it along with the evidence and other
instructions.    I therefore respectfully dissent.
*   *   *    *    *   *   *   *    *      *   *   *   *   *   *   *    *
Order affirmed. Opinion by Judge Garcia. Chief Judge DiFiore
and Judges Rivera and Fahey concur. Judge Wilson dissents in an
opinion in which Judge Stein concurs.

Decided June 6, 2017




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