| People v Hester |
| 2014 NY Slip Op 08046 [122 AD3d 880] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eugene Hester, Appellant. |
Steven A. Feldman, Uniondale, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, AnnBordley, and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered February 14, 2013, convicting him of robbery in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court did not improvidently exercise its discretion in denying thedefendant's request for an adverse inference charge as a sanction for the People's failureto produce an imitation gun at trial. The People showed that the imitation gun was storedat the property clerk's Erie Basin facility in Red Hook, Brooklyn, and could not beproduced at trial because of the flooding and subsequent contamination of the facilitycaused by Hurricane Sandy. Further, although the imitation gun was not available at trial,a photograph of it was admitted into evidence and the defendant's counsel had ampleopportunity to cross-examine the People's witnesses as to the appearance of the imitationgun and the photograph. Additionally, defense counsel explored the unavailability of thegun both during cross-examination and summation. Since the People did not act in badfaith and the defendant was not prejudiced by the People's failure to produce the gun attrial, the court did not improvidently exercise its discretion in declining to give anadverse inference charge (seePeople v Rice, 39 AD3d 567, 568-569 [2007]; People v Berry, 260AD2d 497, 497-498 [1999]; People v Perez, 255 AD2d 403, 403-404[1998]).
The defendant's contention that a certain detective's testimony regarding thecomplainant's show-up identification of the defendant constituted improper bolsteringand deprived him of a fair trial is unpreserved for appellate review (see CPL470.05 [2]; People vWalker, 70 AD3d 870, 871 [2010]; People v Leon, 61 AD3d 776, 777 [2009]; People v Norris, 5 AD3d796, 797 [2004]) and, in any event, without merit. The People laid the properfoundation for such testimony pursuant to CPL 60.25 (see generally People vPatterson, 93 NY2d 80, 82 [1999]; People v Quevas, 81 NY2d 41, 45[1993]; People v Bayron, 66 NY2d 77, 81 [1985]). Eng, P.J., Dillon, Duffy andBarros, JJ., concur.