| People v Smith |
| 2014 NY Slip Op 08487 [123 AD3d 450] |
| December 4, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Howard Smith, Appellant. |
Steven Banks, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered August1, 2005, convicting defendant, after a jury trial, of attempted murder in the seconddegree, robbery in the first degree and second degrees, attempted assault in the firstdegree and assault in the second degree, and sentencing him, as a persistent violentfelony offender, to an aggregate term of 21 years to life, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). Defendant's homicidal intent couldbe reasonably inferred from his conduct (see generally People v Getch, 50 NY2d456, 465 [1980]), including his repeated infliction of severe wounds to the victim's headand neck by swinging a meat cleaver (see e.g. People v Ross, 270 AD2d36 [1st Dept 2000], lv denied 95 NY2d 803 [2000]). Even if defendant's motivewas to escape with stolen property, the jury could have reasonably found that henevertheless intended to kill the person who sought to apprehend him.
The court properly exercised its discretion in denying defendant's mistrial motion,made after the People's loss of exhibits already in evidence and viewed by the jury,consisting of the bloody clothing of both defendant and the victim. There was noevidence of bad faith on the part of the People, who inadvertently caused the exhibits tobe discarded, and any prejudice to defendant from the absence of the exhibits from thecourtroom for the remainder of the trial was highly speculative (see e.g.People v Rubero, 294 AD2d 310 [1st Dept 2002], lv denied 98 NY2d 713[2002]). The clothing was not critical to the People's case or to any trial issues. Althoughdefendant claims that he needed the presence of the coat in order to raise certain issues,we note that the coat was present during the testimony of the victim and anotherimportant witness, and defendant had a full opportunity to cross-examine these witnesseson all matters relating to the coat. Furthermore, the court gave the jury an adverseinference instruction. Defendant has not preserved any of his arguments regarding thatinstruction, and we decline to review them in the interest of justice. As an alternativeholding, we find no basis for reversal. Concur—Tom, J.P., Sweeny, DeGrasse,Feinman and Gische, JJ.