| People v Martinez |
| 2012 NY Slip Op 03945 [95 AD3d 677] |
| May 22, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Christopher Martinez, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), rendered March 10,2011, as amended March 31, 2011, convicting defendant, after a jury trial, of attempted robberyin the third degree, and sentencing him to a term of 1 to 3 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's assessment of thematters cited by defendant that allegedly affected the victim's credibility. We also note that thefact that the jury convicted defendant and the codefendant of different degrees of attemptedrobbery does not warrant a different conclusion regarding the weight of the evidence (seePeople v Rayam, 94 NY2d 557 [2000]).
The victim identified defendant as one of the two men who robbed him, even thoughdefendant wore a mask and did not speak during the robbery. Defendant and the victim lived inthe same building and the victim saw defendant almost daily. The victim was able to identifydefendant by a distinctive body movement, which the victim had seen defendant make manytimes. A distinctive gait or body movement may be a valid means of identification (seePeople v Bale, 10 NY2d 895 [1961]). Furthermore, the trial court granted defendantpermission to demonstrate his gait or body movements, and the jury had an opportunity to makeits own judgment regarding their distinctiveness.
In addition, there was ample evidence that the other robber was the jointly tried codefendant.The codefendant is defendant's brother, who also lived in the building. This evidence tended toconnect defendant with the crime circumstantially and thus corroborate the victim's identification(see e.g. People v Hinton, 252 AD2d 428 [1998], lv denied 92 NY2d1033 [1998]; People v Hurd, 160 AD2d 199, 200 [1990], lv denied 76 NY2d 789[1990]). Furthermore, the victim testified that in the course of defending himself, he struck thecodefendant in the head. When the codefendant was arrested later that day, he had a "fresh cut"on his head.
The court properly exercised its discretion in declining to deliver an adverse inference chargerelating to the loss of the original handwritten version of a police report. There was no evidenceof bad faith on the part of the People or prejudice to defendant (see People v Martinez,[*2]71 NY2d 937, 940 [1988]; see also CPL 240.75).
Defendant's remaining claim is unpreserved (see People v Buckley, 75 NY2d 843[1990]), and we decline to review it in the interest of justice. As an alternative holding, we findno basis for reversal. Concur—Mazzarelli, J.P., Friedman, Catterson, Richter andManzanet-Daniels, JJ.