| People v Seignious |
| 2014 NY Slip Op 01200 [114 AD3d 883] |
| February 19, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sean Seignious, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Kahn, J.), rendered August 10, 2011, convicting him of rape in the first degree (twocounts), sexual abuse in the first degree, and endangering the welfare of a child, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was not legally sufficient to support hisconvictions is not preserved for appellate review, as defense counsel merely made ageneral motion for a trial order of dismissal at the close of the People's case (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 491-492 [2008]; People v Devers, 82 AD3d 1261 [2011]). In any event,viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish hisguilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt as to all of the convictions was not against the weight ofthe evidence (see People vRomero, 7 NY3d 633 [2006]).
The loss or destruction of evidence prior to trial does not necessarily requireimposition of a sanction (see People v Haupt, 71 NY2d 929, 931 [1988]). Where,as here, the defendant claims that the loss of evidence deprived him of a fair trial, "thecourt must consider a number of factors including the proof available at trial, thesignificance of the missing evidence and whether the loss was intentional or inadvertent"(id. at 931; see People vRice, 39 AD3d 567 [2007]). In this case, the People established that certain textmessages on the complainant's cell phone which were allegedly sent to her by thedefendant were inadvertently lost when the battery was removed from the phone so thatthe officer inventorying the phone could copy the phone's serial number. An employee ofT-Mobile, the company that provided the complainant's cell phone service, testified thatthe company was aware of a unique defect in this model of phone which resulted in theloss of data [*2]when the battery was removed. Thus, theevidence was not destroyed in bad faith (see People v Owens, 287 AD2d 469,470 [2001]), and under all of the circumstances of this case, the County Courtprovidently exercised its discretion in denying the defendant's request for an adverseinference charge with respect to the lost evidence (see People v Rice, 39 AD3d 567 [2007]).
The defendant's contention that certain expert testimony invaded the province of thejury and was therefore improperly admitted into evidence is not preserved for appellatereview (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). Inany event, since the expert's opinion that a tear in the complainant's hymen wasconsistent with prior penile penetration concerned matters beyond the ken of the averagejuror, the subject of the testimony was not improper (see People v Sparman, 202AD2d 452 [1994]; see also People v Shepard, 259 AD2d 775, 777 [1999];People v White, 237 AD2d 931 [1997]).
Contrary to the defendant's contention, the County Court did not impermissiblypunish the defendant for exercising his right to proceed with trial by imposing a sentencewhich was harsher than the one he rejected during plea negotiations (see People v Robinson, 84AD3d 1277, 1277-1278 [2011]; People v Price, 256 AD2d 596, 597 [1998];cf. People v Simmons, 29AD3d 1024 [2006]; People v Morton, 288 AD2d 557 [2001], cert denied537 US 860 [2002]; People v Cosme, 203 AD2d 375 [1994]). Moreover, thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 86[1982]). Dillon, J.P., Leventhal, Hall and Austin, JJ., concur.