| People v Acosta |
| 2010 NY Slip Op 05571 [74 AD3d 1213] |
| June 22, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Radames Acosta, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Danielle Hartman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella,J.), rendered December 6, 2007, convicting him of robbery in the first degree, robbery in thesecond degree, grand larceny in the fourth degree, criminal possession of stolen property in thefourth degree (two counts), unauthorized use of a vehicle in the third degree, and criminalpossession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. Theappeal brings up for review the denial (Roman, J.), without a hearing, of that branch of thedefendant's omnibus motion which was to suppress physical evidence. By decision and order ofthis Court dated October 13, 2009, the matter was remitted to the Supreme Court, QueensCounty, to hear and report on that branch of the defendant's omnibus motion which was tosuppress physical evidence, and the appeal was held in abeyance in the interim (see People vAcosta, 66 AD3d 792 [2009]). The Supreme Court, Queens County (Latella, J.), has nowfiled its report.
Ordered that the judgment is affirmed.
The People "have an affirmative obligation to preserve all discoverable evidence within theirpossession" (People v James, 93 NY2d 620, 644 [1999]; see People vHernandez, 285 AD2d 559 [2001]). Here, when a surveillance videotape was destroyed, ithad not been "gathered by the prosecution or its agent" (People v Kelly, 62 NY2d 516,520 [1984]; see People v James, 93 NY2d at 644), and there is no indication that thePeople otherwise had the videotape "within their possession and control" (People vO'Brien, 270 AD2d 433, 434 [2000]). Accordingly, the defendant was not entitled to anadverse inference charge regarding the videotape (see People v Tutt, 305 AD2d 987[2003]).
That branch of the defendant's omnibus motion which was to suppress physical evidence wasproperly denied (see People v Ruppert, 42 AD3d 817, 817-818 [2007]; People vGreen, 41 AD3d 162, 162-163 [2007]). Mastro, J.P., Balkin, Dickerson and Lott, JJ., concur.