| People v Bernard |
| 2012 NY Slip Op 08024 [100 AD3d 916] |
| November 21, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidBernard, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered November 17, 2009, convicting him of robbery in the first degree (four counts), robberyin the second degree (two counts), criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree, and criminal possession of stolen property inthe fourth degree, upon a jury verdict, and imposing sentence. By decision and order datedFebruary 28, 2012, this Court remitted the matter to the Supreme Court, Queens County, for anew determination of the defendant's motion to set aside the verdict pursuant to CPL 330.30, andthe appeal was held in abeyance in the interim (see People v Bernard, 92 AD3d 952 [2012]). The Supreme Courthas filed its determination.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People vGray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The fact that one of thePeople's witnesses had an unsavory background and testified pursuant to a cooperation agreementdid not render his testimony incredible (see People v Chin, 69 AD3d 752, 752-753 [2010]; People v Jean-Marie, 67 AD3d704, 705 [2009]; People vManley, 60 AD3d 870 [2009]; People v Adams, 302 AD2d 601 [2003];People v Harris, 276 AD2d 562 [2000]).
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise itsdiscretion in denying his request for an adverse inference charge. The Supreme Court'sdetermination of an appropriate sanction for the prosecution's failure to preserve evidence "mustbe [*2]based primarily on the need to eliminate prejudice to thedefendant" (People v Rice, 39AD3d 567, 568-569 [2007]; see People v Kelly, 62 NY2d 516, 520 [1984]). Thedefendant was not prejudiced by the loss of the evidence at issue (see People v Rice, 39AD3d at 569; People v Perez, 255 AD2d 403, 403-404 [1998]).
The defendant's contention that he was deprived of the effective assistance of counselbecause his trial counsel took a position adverse to him on his pro se motion to set aside theverdict pursuant to CPL 330.30 has been rendered academic. Upon remittitur to the SupremeCourt, Queens County, for a new determination of the motion (see People v Bernard, 92 AD3d952 [2012]), the defendant's counsel on this appeal represented him and adopted his pro semotion. Eng, P.J., Dillon, Balkin and Cohen, JJ., concur.