| People v Davis |
| 2013 NY Slip Op 03235 [106 AD3d 1510] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarkJ. Davis, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Courtney E. Pettit of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered May 18, 2009. The judgment convicted defendant, upon a jury verdict, ofdriving while intoxicated, a class D felony, and aggravated unlicensed operation of amotor vehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On a prior appeal, we affirmed the judgment convicting defendantupon a jury verdict of, inter alia, felony driving while intoxicated (Vehicle and TrafficLaw §§ 1192 [3]; 1193 [1] [c] [ii]; People v Davis, 91 AD3d 1273 [2012]). We subsequentlygranted defendant's motion for a writ of error coram nobis on the ground that appellatecounsel had failed to raise an issue on appeal that may have merit, i.e., that County Courterred when it allegedly failed to comply with CPL 310.30 in regard to court exhibit No. 4(People v Davis, 96 AD3d1512 [2012]), and we vacated our prior order. We now consider the appeal de novo.
Contrary to the contention of defendant, the court complied with CPL 310.30 inregard to court exhibit No. 4. The supplemental transcript that was submitted by thePeople with their brief establishes that the court provided meaningful notice to the partiesof the contents of the jury note and provided a meaningful response thereto (see generally People vKadarko, 14 NY3d 426, 429 [2010]; People v O'Rama, 78 NY2d 270,276-277 [1991]). We reject defendant's contention that we should not rely upon thesupplemental transcript because it was not part of the original record on appeal. Thesupplemental transcript was certified by the court reporter as being an accurate transcriptfrom the final day of the trial, and was "recertified" by her with respect to court exhibitNo. 4 and the colloquy relating thereto, "which was inadvertently omitted from theoriginal transcript." The parties stipulated that transcripts of the jury trial would besubmitted to this Court, and the supplemental transcript thus falls within that stipulation.Moreover, according to our rules, "[i]n a criminal matter, the failure of the parties or theirattorneys to list in the stipulation to the record on appeal any transcript, exhibit or otherdocument that constituted a part of the underlying prosecution shall not preclude the[C]ourt from considering such transcript, exhibit or other document in determining theappeal" (22 NYCRR 1000.4 [a] [1] [iii]). We may therefore consider the supplementaltranscript attached to the People's brief pursuant to that rule.[*2]
Defendant failed to preserve for our review hiscontention that the court violated CPL 270.15 (2) in conducting the jury selection (see generally People v Hayes,71 AD3d 1477, 1477 [2010], lv denied 15 NY3d 751 [2010]; People v Dickens, 48 AD3d1034, 1034 [2008], lv denied 10 NY3d 958 [2008]), and we decline toexercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). We reject defendant's further contention that hewas denied effective assistance of counsel based on defense counsel's failure to preservefor our review the contention regarding the court's alleged violation of CPL 270.15 (2)(see People v Madera, 103AD3d 1197, 1200 [2013]). Viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant contends that the court erred in denying his motion in limine concerningthe People's alleged spoliation of evidence, i.e., a whiskey bottle and a prescription bottleof hydrocodone. We reject that contention. A police officer observed a one-half tothree-quarter full whiskey bottle in the center of the front seat of defendant's vehiclewhen he was pulled over, and the officer left the whiskey bottle in the vehicle withouttouching it. After defendant was arrested, the officer found a prescription medicationbottle containing hydrocodone on defendant's person, which was returned to him.Inasmuch as the police never lost or destroyed any evidence, there was no spoliation(see generally People v Haupt, 71 NY2d 929, 931 [1988]).Present—Centra, J.P., Fahey, Carni, Whalen and Martoche, JJ.