| People v Smith |
| 2007 NY Slip Op 09297 [45 AD3d 1483] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mark A.Smith, Appellant. |
—[*1] Mark A. Smith, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.),rendered December 9, 2003. The judgment convicted defendant, upon a jury verdict, of robberyin the second degree and grand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrobbery in the second degree (Penal Law § 160.10 [2] [a]) and grand larceny in the fourthdegree (§ 155.30 [5]). Contrary to defendant's contention, the verdict is not against theweight of the evidence with respect to whether the victim sustained a physical injury within themeaning of Penal Law § 10.00 (9) (see generally People v Bleakley, 69 NY2d 490,495 [1987]). Contrary to the contention of defendant in his pro se supplemental brief, theevidence also is legally sufficient in that respect (see generally People v Guidice, 83NY2d 630, 636 [1994]; People vGerecke, 34 AD3d 1260, 1261 [2006], lv denied 7 NY3d 925 [2006]). Althoughdefendant contends that the testimony of the victim with respect to her level of pain was notcredible, the jury was entitled to credit the testimony of the victim that the significant bump onher head resulting from having been punched by defendant caused debilitating pain, requiring herto take pain medication and to remain in bed for three days (see generally Guidice, 83NY2d at 636). Defendant failed to object to Supreme Court's jury instructions on the issue ofphysical injury and thus failed to preserve for our review the challenge in his pro se supplementalbrief to those instructions (see CPL 470.05 [2]). We decline to exercise our power toreview that challenge as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
Finally, we reject the contention of defendant in his pro se supplemental brief that the courterred in failing to impose a sanction based upon the prosecution's failure to secure a hat found atthe scene of the crime. "The People are subject to sanctions for failing to preserve discoverableevidence only if the evidence is lost or destroyed while in their possession" (People v Dei, 2 AD3d 1459, 1461[2003], lv denied 1 NY3d 626 [2004]; see People v Tutt, 305 AD2d 987 [2003],lv denied [*2]100 NY2d 588 [2003]; see also People vCarpenter, 187 AD2d 519, 522 [1992], lv denied 81 NY2d 838, 1012 [1993]), andhere the hat was never in the possession of the People. Present—Scudder, P.J., Hurlbutt,Smith, Fahey and Pine, JJ.