| People v McMillon |
| 2010 NY Slip Op 06925 [77 AD3d 1375] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Andre M.McMillon, Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered February26, 2009. The judgment convicted defendant, upon a jury verdict, of murder in the second degree andcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of murder in thesecond degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the seconddegree (§ 265.03 [3]), defendant contends that County Court erred in denying his request for anadverse inference charge concerning the failure of the police to record defendant's interrogation. "'[T]his Court has repeatedly determined . . . that the failure to record a defendant'sinterrogation electronically does not constitute a denial of due process' . . . , and thus anadverse inference charge was not warranted" (People v Holloway, 71 AD3d 1486, 1487 [2010]; see People v Hammons, 68 AD3d1800 [2009], lv denied 14 NY3d 801 [2010]). Defendant's reliance on cases involvinglost or destroyed evidence and missing witnesses is misplaced (see e.g. People v Joseph, 86NY2d 565, 572 [1995]; People v Gonzalez, 68 NY2d 424 [1986]). In those cases, it wasestablished that there was in fact evidence that was not presented at trial. Here, however, the evidenceat issue, an electronic recording of defendant's interrogation, never existed, nor were the policeobligated to create such a recording.
Defendant failed to preserve for our review his further contention that he was deprived of hisconstitutional right to confront witnesses against him when the court allowed a police officer to testifythat he confronted defendant with evidence that other witnesses had placed defendant at the scene ofthe homicide. "Although the defendant objected to the testimony at issue, he did not specify the groundnow raised on appeal. Therefore, the issue of whether he was deprived of his right of confrontation isunpreserved for appellate review" (People vPerez, 9 AD3d 376, 377 [2004], lv denied 3 NY3d 710 [2004]; see People v Rivera, 33 AD3d 450,450-451 [2006], lv denied 7 NY3d 928 [2006]; People v Mack, 14 AD3d 517 [2005], lv denied 4 NY3d 833[2005]). To the extent that defendant contends that the court erred in failing to issue a limitinginstruction with respect to that testimony, we conclude that defendant likewise failed to preserve [*2]that contention for our review (see People v Martin, 58 AD3d 519 [2009], lv denied 12 NY3d818 [2009]). We decline to exercise our power to review those contentions as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]).
Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). "Where, as here, witness credibility is ofparamount importance to the determination of guilt or innocence, the appellate court must give '[g]reatdeference . . . [to the] fact-finder's opportunity to view the witnesses, hear the testimonyand observe demeanor' " (People vHarris, 15 AD3d 966, 967 [2005], lv denied 4 NY3d 831 [2005], quotingBleakley, 69 NY2d at 495). Indeed, a jury is able to "assess [the] credibility and reliability [ofthe witnesses] in a manner that is far superior to that of reviewing judges[,] who must rely on the printedrecord" (People v Lane, 7 NY3d888, 890 [2006]). Here, although a finding that defendant was not the shooter would not havebeen unreasonable given the lack of physical evidence and the questionable reliability of the People'switnesses who implicated defendant, it cannot be said that the jury failed to give the evidence the weightit should be accorded (see generally Bleakley, 69 NY2d at 495). Present—Martoche,J.P., Carni, Green, Pine and Gorski, JJ.