| People v Handy |
| 2011 NY Slip Op 02593 [83 AD3d 1454] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dayshawn P.Handy, Appellant. |
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Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedOctober 18, 2007. The judgment convicted defendant, upon a jury verdict, of assault in thesecond 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 assault inthe second degree (Penal Law § 120.05 [7]), defendant contends that County Court erred indenying his request for an adverse inference charge concerning the failure of the People topreserve an alleged videotape of the assault. Contrary to defendant's contention, an adverseinference charge was not warranted inasmuch as defendant failed to establish that the allegedvideotape was discoverable evidence that the People were required to preserve (see People vJames, 93 NY2d 620, 644 [1999]; People v Kelly, 62 NY2d 516, 520 [1984]). Thereis no support in the record for defendant's assertion that the alleged videotape was exculpatoryand thus his contention that the alleged videotape was Brady material is merelyspeculative (see People v Ross, 282 AD2d 929, 931 [2001], lv denied 96 NY2d907 [2001]; People v Scattareggia, 152 AD2d 679, 679-680 [1989]).
Contrary to defendant's further contention, the evidence, viewed in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient toestablish that defendant intended to cause injury to another person (see Penal Law§ 120.05 [7]; People vCooper, 50 AD3d 1570 [2008], lv denied 10 NY3d 957 [2008]; People vAmin, 294 AD2d 863 [2002], lv denied 98 NY2d 672 [2002]; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Further, viewing the evidence in light of theelements of the crime of assault in the second degree as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Finally, the sentence is not unduly harsh orsevere. Present—Smith, J.P., Fahey, Peradotto, Lindley and Martoche, JJ.