| People v Nelson |
| 2011 NY Slip Op 09351 [90 AD3d 954] |
| December 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Nelson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'HaraGillespie, and Bruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.),rendered August 10, 2009, convicting him of criminal possession of marijuana in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The court did not improvidently exercise its discretion in denying the defendant's request foran adverse inference charge as a sanction for the People's failure to provide to the defense anallegedly missing photograph of a bag of marijuana taken by a detective. The defendant failed todevelop a record establishing a factual basis that the alleged photograph existed (see People v Banks, 74 AD3d1214, 1215 [2010]; People vYoung, 61 AD3d 786 [2009]; People v Smith, 33 AD3d 462 [2006]; People v Brown, 286AD2d 340 [2001]).
The prosecutor improperly went outside of the four corners of the evidence when, insummation, he made the inflammatory and unsupported remarks that the defendant and hiscodefendant had brought their children onto their "team" with respect to a "business plan"involving their possession of marijuana (see People v Ashwal, 39 NY2d 105, 110[1976]; People v Parker, 178 AD2d 665, 665-666 [1991]). The prosecution "may not. . . try to convey to the jury, by insinuation, suggestion or speculation, theimpression that the defendant is guilty of other crimes not in issue at the trial" (People vAshwal, 39 NY2d at 110). The defendant's contentions regarding other improper questioningand summation comments by the prosecutor are not preserved for appellate review (seeCPL 470.05 [2]; see also People v Teeter, 47 NY2d 1002 [1979]). In any event, a newtrial is not warranted because we find that the cumulative effect of all of the alleged errors washarmless, as the evidence of the defendant's guilt, without reference to the alleged errors, wasoverwhelming, and there is no significant probability that the alleged errors might havecontributed to the defendant's conviction (see People v Crimmins, 36 NY2d 230, 241-242[1975]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 86[1982]). Skelos, J.P., Belen, Lott and Cohen, JJ., concur.