| People v Blake |
| 2013 NY Slip Op 02199 [105 AD3d 431] |
| April 2, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Andrew Blake, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered April7, 2009, convicting defendant, after a jury trial, of attempted murder in the second degree(three counts), assault in the first degree (two counts), assault in the second degree,criminal possession of a weapon in the second degree (two counts), recklessendangerment in the first degree and bribery in the second degree, and sentencing him toan aggregate term of 25 years, unanimously affirmed.
Defendant did not preserve his claim that the court should have given an adverseinference charge regarding the loss of a police-made surveillance videotape. As analternative holding, we find that although such an instruction would have beenappropriate, its absence was harmless (see People v Crimmins, 36 NY2d 230[1975]). For related reasons, we also find that trial counsel's failure to request theinstruction did not deprive defendant of effective assistance under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998];Strickland v Washington, 466 US 668 [1984]).
The jury was fully aware of the loss of the tape and its surrounding circumstances.Furthermore, the court permitted defense counsel to assert in summation that the missingtape would have actually supported defendant's claim of self defense, by showing the"aggressors" attacking the "terrified" defendant, who was "defending himself" and tryingto get away. The court also permitted counsel to insinuate that the tape was deliberatelysuppressed because of its exculpatory value, rather than being negligently lost.
However, there was overwhelming evidence that directly refuted defendant'sself-defense claim, including, among other things, another videotape. In addition, therewas extensive evidence of conduct by defendant that was inconsistent with that of aperson who had acted in self-defense, including interstate flight, an attempt to destroyevidence, a false initial statement to the police, and a bribe offer. For these reasons, wefind there is no reasonable possibility that an adverse inference charge would haveresulted in a different verdict.
As for defendant's ineffective assistance claim, the present unexpanded record isinsufficient to determine whether counsel's failure to request an adverse inference chargefell below an objective standard of reasonableness. Counsel may have had strategicreasons for that [*2]course of action, including a concernthat the language of such an instruction might undermine her summation argument. Inany event, regardless of whether counsel should have requested the instruction, we find,for the reasons already stated, no reasonable possibility that the lack of an adverseinference charge deprived defendant of a fair trial or affected the outcome (seeStrickland, 466 US at 694).
We perceive no basis for reducing the sentence. Concur—Friedman, J.P.,Sweeny, Renwick, Richter and Román, JJ.