Marisa K. Cabrera, for appellant.
Ravi Kantha, for respondent.
Rahul Sharma, for appellant.
Ravi Kantha, for respondent.
This appeal calls upon us to decide whether the trial judge abused his discretion when he declined to give an adverse inference charge regarding the loss of the handwritten complaint report (commonly referred to as a "scratch 61") prepared by a police officer who responded to a 911 call reporting a robbery. Defendants Selbin Martinez (Selbin) and Christopher Martinez (Christopher) (collectively, defendants) were subsequently convicted of attempted robbery in connection with this incident. For the reasons that follow, we conclude that the judge did not abuse his discretion.
On Friday, July 17, 2009, at roughly 4:00 p.m., 45-year-old Armando Irizarry, Sr. (Irizarry), a self-employed repairman, returned from a job to his apartment on the 14th floor of a high-rise building on Havemeyer Avenue in the Bronx. The building is public housing owned by the New York City Housing Authority, and Irizarry had lived in the same apartment there for about seven years. He was well-acquainted with defendants, longtime residents of an apartment on the building's 13th floor. Through the years, he had engaged in casual conversation with them both.
Irizarry saw Christopher "[a]lmost every day... hanging out" in the hallway on the 14th floor, "either smoking cigarettes or talking to his friend, " who lived on that floor. Christopher and this friend were inseparable. Irizarry owns a Jack Russell terrier, a very nervous dog that "hated" Christopher. When Irizarry left his apartment with the dog to go downstairs and outside to walk her, the terrier would bark at Christopher, who invariably reacted by "run[ning] awkwardly... like hopping" as he "back[ed] up away from" the dog, scared. Irizarry also encountered Selbin a few times a week in the building. He noticed that Selbin, too, had "a particular way of walk[ing]" and holding his shoulders. Irizarry described himself as "really bad with people and faces, " which forced him "to rely on movements and physical characteristics to remember people."
Upon arriving home, Irizarry received a call from his adult son, who had been waiting for him at a neighbor's apartment. Irizarry intended to return to work to finish up a job so that he could get paid for it the next day. But first, after his son "implied that he was hungry, " Irizarry ordered takeout from a Chinese restaurant and gave his son $20 to pay for the food. At about 5:00, he accompanied his son into the 14th floor's well-lit hallway on the way to the elevator and downstairs to the lobby to pick up the food delivery.
Two elevators and adjacent stairwells A and B are located outside Irizarry's apartment. Because one of the elevators was typically out of order, Irizarry's son peered through the elevator windows to see which one was working at the time. Meanwhile, Irizarry heard noise in stairwell B. When he opened the stairwell's door out of curiosity, he spotted someone "all in black" crack the door on the floor below and "take a peek" at him, but he was not alarmed; he closed the door and headed back to the elevator. Suddenly, though, a man emerged from the stairwell, dressed from head to toe in black. His face hidden behind a ski mask that exposed only his mouth and eyes, the man also wore sunglasses, a hat and gloves. Armed with a baseball bat, he was closely followed by a second man, similarly clad all in black, with his head and face concealed by a hood and a ski mask that exposed only his eyes. The second man carried a gun.
Irizarry "right away" recognized the first man as Selbin "because of the way he walks" and because he is "really slim and tall." Assuming at first that Selbin was just joking around, Irizarry stepped up to him upon his approach and asked, "What's up, Silence?, " a reference to Selbin's nickname. In response, Selbin pushed Irizarry and told him to "Give it up." Now fearful that Selbin and his companion intended harm and sensing that Selbin was ready to swing the bat at him, Irizarry pulled out from his pocket a sock in which he had stuffed a billiard ball. He always carried this makeshift weapon with him for protection.
Irizarry threatened Selbin with the billiard ball, and called out to his son to alert him to the danger. Selbin then walked toward Irizarry's son, swinging the bat from side to side and signaling him to be quiet by putting a finger up to his mouth and vocalizing "Shh." As Selbin made this gesture, he inadvertently revealed his mustache . Irizarry's son backed away from Selbin, edging toward the elevators and sliding in the direction of stairwell A.
At that point, Irizarry turned his attention to the other man so as "to put space between" that man's gun and Irizarry's son. As he advanced, brandishing his billiard ball, the gunman immediately retreated to stairwell B by running backward "just like... when he [saw Irizarry's] Jack Russell dog. Exactly the same thing, " which is when and how Irizarry recognized Christopher.
Irizarry then grabbed his son and pulled him into stairwell A, and closed and blocked the door, which has a window. As Selbin tried to pry the door open and Irizarry, who is much heavier, resisted, Selbin's ski mask shifted, uncovering his chin, nose and cheek. Afraid that Christopher might gain access to stairwell A from another floor and shoot him and his son, Irizarry opened the door slightly, swung "as hard as [he] could" and hit Selbin with the billiard ball, flooring him. Certain that Selbin was "dizzy, confused because [he] hit him hard, " Irizarry "decided to run for [his] life" and "drag[ged his] son with [him], all the way downstairs to the first floor, " where he called 911 at 5:47 p.m. Irizarry told the operator that he thought he knew the perpetrators' identities, but he did not then name them.  Irizarry's son had been holding the $20 in his hand while waiting for the elevator, and at some point - he believes when his father jerked him into the stairwell - he dropped the money in the hallway. After making the 911 call, Irizarry and his son went back up to the 14th floor and looked for the $20 to no avail. Before returning to Irizarry's apartment, they did, however, find a single lens from a pair of sunglasses on the floor in front of stairwell A. With this discovery, Irizarry deduced that he must have hit Selbin in the face with the billiard ball.
The day this happened, Police Officer Hairo Franco and his partner were working from 5:30 p.m. until 2:00 a.m. the next morning as part of a plainclothes police unit organized to combat street-level violence. They were patrolling the precinct when they received a radio call from the dispatcher telling them of a 911 call reporting a robbery at the Havemeyer address. They arrived at the building at 5:55 p.m. and went to Irizarry's apartment, where they spoke with him and his son. Irizarry gave the police a description of the perpetrators. He still did not identify either of them by name, however. Officer Franco called the "Viper" unit, responsible for monitoring the security cameras in the building, and learned that no one fitting the descriptions given by Irizarry had been seen leaving the premises. Officer Franco and his partner then canvassed the building, starting at the roof, but found no suspects.
After speaking with Officer Franco, Irizarry and his son were taken to the police station where they spoke to a detective. During this interview, Irizarry identified Selbin as one of the perpetrators. He told the police where Selbin lived, and at about 7:00 p.m. that evening, they arrived at defendants' apartment, where a young girl answered the door and indicated she was alone. When defendants' mother got home from work a few minutes later, the police told her they were looking for Selbin and asked for permission to check the apartment. She agreed. In one of the bedrooms, the officers moved an ironing board obstructing the closet door and discovered Selbin inside, huddling on the floor under a jumble of clothes; he sported a fresh cut and lump on his forehead . Officer Franco placed Selbin under arrest. Christopher, who was in the apartment at the time, was arrested by another officer at 8:00 a.m. the next day. 
On July 29, 2009, the grand jury handed down a 17-count indictment accusing defendants of committing various crimes, including attempted robbery, assault, grand and petit larceny, criminal possession of stolen property and criminal weapon possession. At the ensuing joint jury trial in November, 2010, Irizarry, his son and Officer Franco testified as narrated. The jury also heard the 911 tape and viewed a photograph taken by Officer Franco at the time of Selbin's arrest to show the condition of his forehead.
On cross-examination, Irizarry conceded that some of the details he recounted in his testimony seemingly differed from contemporaneous accounts based on information that he provided to law enforcement. For example, the detective who interviewed him at the precinct recorded that Irizarry stated that "none of the perpetrators said anything" to him, and the criminal complaint signed by Irizarry did not mention that either of the perpetrators swung a bat at him or his son. He explained these inconsistencies or omissions by saying he was in shock at the time and so may have forgotten to tell the police or the district attorney some details, or they may have neglected to record some details or they may not have fully understood him because of his accent.
Officer Franco on cross-examination acknowledged that the only "paperwork" or notes he created between the time he first arrived at the Havemeyer address and Selbin's arrest were to be found in his memo book. When he returned to the precinct after the arrest, he prepared a scratch 61, which he "put in the bin where it gets filed." Asked if this was "[t]he same file as the other paperwork in this case that was turned over to the prosecutor, " Officer Franco answered "No." He confirmed that he never gave the scratch 61, the handwritten complaint report, to the prosecutor ...