| People v Turner |
| 2014 NY Slip Op 04072 [118 AD3d 463] |
| June 5, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Michael Turner, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), renderedAugust 20, 2012, convicting defendant, after a jury trial, of robbery in the first degree(two counts), robbery in the second degree (two counts), burglary in the second degree(three counts) and grand larceny in the fourth degree, and sentencing him, as a secondfelony offender, to an aggregate term of 12 years, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). The evidence supported the inference that defendantwas an intentional participant in a forcible taking, and was not merely a knowingfacilitator.
The court properly denied defendant's request for an adverse inference chargeregarding a segment of security videotape that was created and later erased by themanagement of the building where the robbery took place, as it was never in thepossession of the police or prosecution (see People v Banks, 2 AD3d 226 [1st Dept 2003], lvdenied 2 NY3d 737 [2004]). The fact that a police officer viewed the tape did notplace it within the People's constructive possession or control (see People v Walloe, 88 AD3d544 [1st Dept 2011], lv denied 18 NY3d 963 [2012]; see also People v Hayes, 17NY3d 46 [2011], cert denied 565 US &mdash, 132 S Ct 844 [2011]). In anyevent, the portion of the tape that was introduced at trial was clearly incriminating, andthere is no reason to believe that the erased portion was exculpatory.
The court's Sandoval ruling balanced the appropriate factors and was aproper exercise [*2]of discretion (see People v Williams, 12NY3d 726 [2009]; People v Walker, 83 NY2d 455, 458-459 [1994]). In acompromise ruling, the court only permitted defendant's convictions to be identified asunspecified felonies. Concur—Friedman, J.P., Acosta, Saxe, Feinman and Gische,JJ.