- Associated Press - Monday, February 9, 2015

ROCHESTER, N.Y. (AP) - A federal judge will not dismiss a murder charge against four people even though some evidence in the case was mistakenly shipped to an auction house and lost.

Magistrate Judge Jonathan Feldman ruled that although an Erie County property clerk’s carelessness was “nothing short of astonishing,” the charge should stand because there was no proof that police had deliberately caused the evidence to be mishandled.

The Jan. 27 ruling came in the case of four Rochester residents accused of the 1998 drug-related killing of Francisco Santos, whose body was found the next year buried on the Cattaraugus Indian Reservation in western New York.

Although sheriff’s investigators collected a broken knife blade, broken shovel and other materials, no charges were filed until 2010, when a federal grand jury indicted James Kendrick, Pablo Plaza, Janine Plaza Pierce and Angelo Cruz on several charges.

Defense attorneys moved to have the murder charge thrown out after learning in 2012 that the physical evidence in the case no longer existed.

During an April hearing, an Erie County property clerk said that in 2002, he mistakenly sent a box of evidence from the open case to an auction house, which regularly picked up items that police no longer needed to free up storage space.

“It never should have gone,” the clerk testified. “I can’t tell you exactly how I did it, but I know I made a mistake and pulled it off the shelf and got rid of it.”

Defense attorneys and prosecutors differed on whether the evidence was valuable to the case. There were no apparent body fluids on the knife blade, authorities said.

Plaza pleaded guilty to murder in May in exchange for a prison sentence of 25 years. The others have pleaded not guilty.

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