| People v Rivera |
| 2015 NY Slip Op 01972 [126 AD3d 818] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gamalier Rivera, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered November 23, 2011, convicting him of robbery in the seconddegree (two counts), assault in the second degree, criminal possession of a weapon in thefourth degree, resisting arrest, and criminal possession of a controlled substance in theseventh degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's motion to dismiss the indictment was properly denied (seeCPL 190.50). Moreover, contrary to the defendant's contention, even if his initialassigned counsel failed to act on his desire to testify before the grand jury, any suchfailure on the part of counsel did not, under the circumstances of this case, amount to thedeprivation of the effective assistance of counsel (see People v Simmons, 10 NY3d 946, 949 [2008];People v Wiggins, 89 NY2d 872, 873 [1996]).
The defendant's contention that the Supreme Court should have given an adverseinference charge to the jury or otherwise sanctioned the People based on the allegedfailure of the police to recover a store surveillance videotape is without merit." 'The People are subject to sanctions for failing to preserve discoverableevidence only if the evidence is lost or destroyed while in their possession' " (People v Dockery, 107 AD3d913, 914 [2013], quoting People v Dei, 2 AD3d 1459, 1461 [2003]). Here, the recorddoes not establish that the videotape was ever in the possession of the police (seePeople v Dockery, 107 AD3d at 914; People v Dei, 2 AD3d at 1460;People v Tutt, 305 AD2d 987, 987 [2003]; People v O'Brien, 270 AD2d433, 434 [2000]).
The defendant's contention that he was deprived of a fair trial by certain remarksmade by the prosecutor during summation is unpreserved for appellate review, as thedefendant failed to object to any of the challenged remarks (see People v Yusuf, 119 AD3d619 [2014]; People vOrmejuste, 117 AD3d 756 [2014]). In any event, this contention is withoutmerit. The challenged remarks were fair comment on the evidence, responsive to thedefense summation, and remained within the broad bounds of rhetorical commentpermissible in closing arguments (see People v Thompson, 118 AD3d 822 [2014], lvgranted 24 NY3d 1089 [2014]; People v Mobley, 116 AD3d 1067 [2014]; People v McGowan, 111AD3d 850 [2013]).
[*2] Thedefendant failed to preserve for appellate review his contention that the evidence at trialwas legally insufficient to support his convictions of robbery in the second degree andassault in the second degree (Penal Law §§ 120.05 [6]; 160.10 [2]),because the People failed to show that the complainant sustained a "physical injury," anelement of both crimes (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v White, 94 AD3d918, 918 [2012]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish that the complainant sustained physical injury (seePenal Law § 10.00 [9]; People v Valencia, 50 AD3d 1163, 1164 [2008]; People v Krotoszynski, 43AD3d 450, 453 [2007]). Moreover, upon our independent review pursuant to CPL470.15 (5), we are satisfied that the verdict of guilt on those counts was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that he was penalized for going to trial rather thanaccepting a plea offer is also unpreserved for appellate review (see People v Evans, 16 AD3d595, 596 [2005]) and, in any event, is without merit. The fact that the defendant'ssentence was greater than the one he would have received had he pleaded guilty does notestablish his entitlement to a lesser sentence (see id.; People v Hinton,285 AD2d 476 [2001]). Moreover, the sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Dickerson,Cohen and LaSalle, JJ., concur.