| People v Conley |
| 2010 NY Slip Op 01501 [70 AD3d 961] |
| February 16, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Maria E. Conley, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.),rendered September 17, 2008, convicting her of resisting arrest, obstructing governmentaladministration in the second degree, and disorderly conduct, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
A prosecutor has an obligation to preserve all evidence which may be subject to disclosure(see People v James, 93 NY2d 620, 644 [1999]; People v Kelly, 62 NY2d 516,520 [1984]; People v Colon, 61 AD3d 772 [2009]; People v Cannonier, 236AD2d 619 [1997]; People v Samuels, 185 AD2d 903, 904 [1992]). Thus, when theprosecutor fails to preserve potential evidence the court may fashion "an 'appropriate' response. . . to eliminate any prejudice to the defendant while protecting the interests ofsociety" (People v Kelly, 62 NY2d at 520, quoting CPL 240.70 [1]; see People vColon, 61 AD3d at 772; People v Cannonier, 236 AD2d at 619; People vSamuels, 185 AD2d at 904). However, the remedy of dismissal should not be invoked where"less severe measures can rectify the harm done" (People v Kelly, 62 NY2d at 521).Here, the trial court providently exercised its discretion in giving the jury an adverse inferencecharge with respect to an unpreserved video recording.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. In fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]).
Contrary to the defendant's contention, the sentence imposed was not illegal. In pronouncingsentence from the bench on the convictions of resisting arrest and obstructing governmentaladministration in the second degree, the court stated that it was sentencing the defendant "to thetime you [*2]have served as well as three years probation," usingthe phrase "time served" in its colloquial, rather than any technical legal, sense. While thedefendant correctly asserts that a sentence of 60 days is the maximum permissible jail term for amisdemeanor that may be combined with a sentence of three years' probation (see PenalLaw § 60.01 [2] [d]; § 65.00 [3] [b] [i]; People v Marinaccio, 297 AD2d754, 755 [2002]), the mere fact that she had been in custody for a period in excess of 60 daysbefore sentencing did not render the sentence illegally excessive. While the court should haveexpressly imposed a sentence of 60 days' imprisonment, which was satisfied by the "time served"by the defendant pending her conviction (see Penal Law § 70.30 [3]; People vMarinaccio, 297 AD2d at 755), 60 days' imprisonment was the sentence that was effectivelyimposed. The fact that the defendant served a period in excess of 60 days before her convictiondid not render her sentence illegal (see People v Marinaccio, 297 AD2d at 755). Skelos,J.P., Covello, Balkin and Austin, JJ., concur.