As previously noted the Fourth Department ended 2009 by holding that since there is not a constitutional duty for police to record interrogations a defendant is not entitled to an adverse inference charge regarding the failure to record. Yet, both the United States Supreme Court and the New York Court of Appeals have long recognized that a party's failure to produce evidence which would elucidate the transaction in issue, when that party has it peculiarly within his power to produce such evidence, supports an instruction that the jury can draw an adverse inference that the testimony, if produced, would have been unfavorable to the party who failed to produce it. (People v Gonzalez, 68 NY2d 424, 427 [1986]; Gordon v People, 33 NY 501 [1865]; Graves v United States, 150 US 118, 121 [1893]).Importantly, this rule applies even where a party is not required to produce any evidence or that type of evidence. Thus, even though a defendant has no obligation to produce any evidence, once a defendant presents some evidence, his failure to call other witnesses under his control who have information material to the case may be the basis for an adverse inference charge against the defendant. (People v Paylor, 70 NY2d 146 [1987]; People v Rodriguez, 38 NY2d 95, CJI2d[NY], A Party's Failure to Call a Witness).

Despite this, in People v Holloway (2010 NY Slip Op 02302 [4th Dept 3/19/10]) the Court again held that a trial court properly denied defendant's request for an adverse inference charge because "[T]his Court has repeatedly determined[, however,] that the failure to record a defendant's interrogation electronically does not constitute a denial of due process" (citations omitted), and thus an adverse inference charge was not warranted (see People v Hammons, 68 AD3d 1800; People v Mastin, 261 AD2d 892, 894-895, lv denied 93 NY2d 1022)."

This decision was rendered six weeks after Freddie Peacock became the 250th person exonerated by DNA evidence after conviction, when his 1976 rape conviction was vacated in Monroe County. On his appeal the Appellate Division had agreed with Mr. Peacock's contention that the trial court erroneously permitted two witnesses to bolster the identification testimony of the complainant (People v Peacock,70 AD2d 781 [4th Dept 1979]), but held that "in light of the strong evidence of guilt, including defendant's confession, we find the error to be harmless." Twenty one years later it was finally proved that this confession was false. Thus, reliance on an unrecorded false confession led to the affirmance of a wrongful conviction. Yet the court refuses to even require judges, upon request to instruct jurors that in deciding whether the People have proved voluntariness of a confession beyond a reasonable doubt they can draw an adverse inference from the failure to record.