Appeal likely over warehoused evidence lost during Sandy

January 9, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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Brooklyn defendant Manuel Castro discovered the physical evidence against him was washed away in waters of Superstorm Sandy. Even with the destruction of the physical evidence, Castro, a repeat violent offender, was sentenced to 23 years to life for the robbery and stabbing assault of a woman.

The Brooklyn Eagle reported early this month that the auto pound and evidence warehouses where the New York City Police Department store hundreds of seized cars, thousands of guns and 9,846 barrels of evidence containing sensitive DNA material have suffered tremendous damage during October’s Superstorm Sandy.

Slowly, cases affected by the damaged evidence are being brought to light.  Paul J. Browne, the chief spokesman for the Police Department, said that in at least six criminal trials, a police official has had to testify that evidence was inaccessible, but still existed.

Castro, whose case was presided over by Brooklyn Supreme Court Justice Deborah Dowling, was found a few blocks from the crime scene covered in blood and tattered clothing.  After he was arrested, Castro’s clothing was taking for DNA testing, and it was found that the blood on his clothing matched that of the victim. A report detailing the findings were delivered to prosecution and defense and the physical evidence was returned to the NYPD storage warehouse in Brooklyn.

The defense did not conduct a separate test the evidence prior to Hurricane Sandy.

“We had three witnesses testify that the defendant committed the crime he was charged with,” said Marsha Michael , principal law clerk to Hon. Dowling.  The prosecution presented a number of witnesses and other forms of documentary evidence as pertained to the physical evidence that Sandy destroyed.

“The chain of custody was verified, pictures were taken of the physical evidence prior testing, and person who conducted the testing testified, “ Michael added.

“We believe the ruling that permitted the evidence to come in was incorrect and we are appealing,” said Steven Banks, chief lawyer for the Legal Aid Society.

Michael disagrees. “Under the specific circumstances of the Castro case, there was no prejudice to the defendant. We are talking about evidence that was already tested. A report on the test results was submitted prior to the storm.”

Defense counsel contends that as a result of the evidence destruction, they were unable to confront the evidence in a court of law.

There will be instances where Sandy may have devastating effects on a criminal trial. In a rape case, for example, where the evidence may have not been tested prior to Sandy, that would be a logical situation where a case may be compromised. “That did not happen in the Castro case,” Michael noted.

“Each judge has to make their own determination,” commented Hon. Barry Kamins, administrative judge for Criminal Courts of New York. “As this slowly unravels, all will be determined on a case by case basis.”

Hurricane Sandy may necessitate new rules regarding the processing and storing of evidence to emerge. In addition, defense counsel may be required to test evidence within a reasonable amount of time in an effort to combat unforeseen situations, such as the one precipitated by Sandy.

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