## Facts

- Samuel James, a New York City Transit Police officer, testified before a grand jury investigating an alleged leak of a transit police promotional exam.
- The prosecution alleged that on October 20, 1990, Lieutenant Michael Gordon arranged a late-night meeting at his apartment to disclose exam questions to certain officers, including James.
- A telephone call between Gordon and Officer Lizette Lebron about the planned meeting was inadvertently recorded on Lebron’s phone without either speaker’s knowledge.
- Lebron testified that she attended the meeting with James and others, and that Gordon provided questions later appearing on the exam, which attendees copied and took.
- James was indicted for first-degree perjury based on his grand jury denial that he attended the October 20 meeting.
- At trial, Gordon did not testify; the People offered the recording and transcript containing Gordon’s statements indicating James would attend.
- The trial court admitted Gordon’s statements under the state-of-mind (intent/plan) hearsay exception.
- Lebron admitted she destroyed the original recording; the defense sought a missing-evidence/adverse-inference instruction as a sanction.
- A jury convicted James on two counts of first-degree perjury; the Appellate Division affirmed.

## Issues

1. Whether a declarant’s recorded statement of intent/plan that the defendant would be present at a future meeting was admissible under the state-of-mind hearsay exception as circumstantial evidence of the defendant’s attendance.
2. Whether the trial court erred by refusing to give an adverse-inference (missing-evidence) charge based on destruction of the original tape recording.

## Decision

- The Court of Appeals affirmed the judgment of conviction.
- The court held that Gordon’s recorded statements were properly admitted under the state-of-mind exception as evidence of an intended meeting involving identified participants, including James.
- The court held that the refusal to give an adverse-inference instruction for the destroyed tape was within the trial court’s discretion and did not warrant reversal.

## Legal Principles

- A declarant’s statement of then-existing intent or plan may be admissible not only to show the declarant’s mental state, but as circumstantial evidence that the declarant acted consistently with that intent.
- The state-of-mind exception may permit admission of a declarant’s intent statement that contemplates a future event with a named other person, as circumstantial proof of that other person’s participation, particularly where there is independent evidence the event occurred.
- Remedies for loss or destruction of evidence, including whether to give a missing-evidence/adverse-inference instruction, are generally committed to the trial court’s discretion and require a showing of abuse of discretion and prejudice for reversal.

## Conclusion

The court upheld James’s perjury convictions, ruling that a declarant’s contemporaneous statement of intent describing a planned meeting with identified participants was admissible as circumstantial evidence of the defendant’s presence when corroborated, and that the trial court acted within its discretion in declining to issue an adverse-inference instruction for destruction of the original recording.


People v. James, 93 N.Y.2d 620, 717 N.E.2d 1052 (N.Y. 1999)