| People v Martinez |
| 2012 NY Slip Op 07889 [100 AD3d 537] |
| November 20, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v SelbinMartinez, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered March 10, 2011,as amended March 25, 2011, convicting defendant, after a jury trial, of attempted robbery in thesecond degree, and sentencing him, as a second felony offender, to a term of 4½ years,unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight ofthe evidence (see People vDanielson, 9 NY3d 342, 348 [2007]). Moreover, we find that the evidence ofdefendant's guilt was overwhelming. There is no basis for disturbing the jury's credibilitydeterminations.
The victim testified that he recognized defendant, who was wearing a mask, based on hisbody type and his manner of walking, since he had seen defendant in his apartment building on aregular basis for years. In addition, the victim saw a portion of defendant's face that was leftexposed, and heard him speak during the incident. The jury could have reasonably inferred thatthese factors facilitated the victim's ability to recognize defendant as one of his neighbors. Thevictim also recognized the other masked assailant as defendant's brother (see People v Martinez, 95 AD3d677 [1st Dept 2012] [codefendant's appeal]).
Furthermore, shortly after the crime, the police went to defendant's apartment and wereadmitted by his mother. The officers found defendant hiding in a closet underneath a pile ofclothing. Defendant had a bump and a fresh cut on his head. During the incident, the victim hadhit the assailant he recognized as defendant in the head with a cue ball. There was no possibleinnocent explanation of these circumstances, which rendered the evidence overwhelming.
The court delivered an identification charge in which it marshaled some of the evidencerelating to the victim's recognition of defendant. When viewed as a whole, the marshaling tendedto favor defendant, and it did not deprive him of a fair trial (see People v Culhane, 45NY2d 757, 758 [1978], cert denied 439 US 1047 [1978]).
An officer's testimony about his communications with officers who were monitoringsurveillance cameras in the apartment building where the incident occurred did not constituteinadmissible hearsay warranting reversal. Even if the officer's testimony that he did not learn ofanyone who matched the assailants' description leaving the building could be viewed as implied[*2]hearsay, it was admissible to complete the officer's narrativeby explaining why he then canvassed the building (see People v Tosca, 98 NY2d 660[2002]). In any event, in light of the overwhelming evidence of guilt, there is no significantprobability that this vague testimony affected the verdict (see People v Kello, 96 NY2d740, 744 [2001]). Defendant's contention that the court erred by failing to give a limitinginstruction is unpreserved, and we decline to review it in the interest of justice. As an alternativeholding, we likewise find that any error in this regard was harmless.
The court properly exercised its discretion in declining to deliver an adverse inference chargepertaining to the loss of an officer's handwritten notes (see Martinez, 95 AD3d at 678).Concur—Mazzarelli, J.P., Sweeny, Moskowitz and Freedman, JJ.