| People v Burton |
| 2015 NY Slip Op 02249 [126 AD3d 1324] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTramell Burton, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
Tramell Burton, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered September 12, 2011. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree (two counts), robbery in the second degree (two counts) andcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, two counts of robbery in the first degree (Penal Law§ 160.15 [2], [4]). The charges arose from defendant striking the victim onthe head with a handgun, and defendant and codefendant taking several of the victim'spossessions.
We reject defendant's contention that, because there is only circumstantial evidencesupporting the fact that he was a perpetrator, the evidence is legally insufficient tosupport the conviction. Viewing the circumstantial evidence in the light most favorableto the People (see People v Hines, 97 NY2d 56, 62 [2001], rearg denied97 NY2d 678 [2001]), we conclude that there is a valid line of reasoning and permissibleinferences that could lead a reasonable jury to conclude that defendant struck the victimon the head with a handgun, and took the victim's possessions (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's further contention,viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that "the jury could properly have inferred thatdefendant was one of the perpetrators" (People v Goree, 309 AD2d 1204, 1204[2003]; see generally People v Dukes, 160 AD2d 332, 332 [1990], lvdenied 76 NY2d 847 [1990]; People v Ngor Yip, 118 AD2d 472, 474[1986]). Defendant was found in both spatial and temporal proximity to the crime scene,and in possession of the items stolen from the victim (see Goree, 309 AD2d at1204). We therefore conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
We reject defendant's further contentions that the People deprived him of his right topresent a defense by failing to secure a purported surveillance video from the bar outsideof which the robbery occurred, and that County Court erred in denying his request for anadverse inference instruction with respect to that failure. We note that defendant failed topreserve for our review his contention that he was denied the right to present a defensebecause "[he] did not raise th[at] constitutional claim[ ] in the trial court" (People v Lane, 7 NY3d888, 889 [2006]; see Peoplev Norcutt, 115 AD3d 1306, 1309 [2014], lv denied 23 NY3d 966[2014]), and we decline to exercise our power to review defendant's contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Weconclude that the court properly denied defendant's request for an adverse inferenceinstruction with respect to the purported surveillance video. Although the People [*2]would have a duty to protect such a video from beingdestroyed if it were in their possession (see generally People v Handy, 20 NY3d 663, 668-669[2013]), the record fails to establish that either the police or the People had possession ofany such video (see generallyPeople v Nelson, 90 AD3d 954, 954 [2011], lv denied 18 NY3d 996[2012]). Moreover, the People have no duty to seek evidence for defendant's benefit or toprotect evidence prior to their possession of it (see People v Hayes, 17 NY3d 46, 51 [2011], certdenied 565 US &mdash, 132 S Ct 844 [2011]; People v James, 93 NY2d620, 644 [1999]; People vHernandez, 107 AD3d 504, 505 [2013], lv denied 22 NY3d 1199[2014]).
We reject defendant's further contention in his pro se supplemental brief that thecourt erred in denying his request for a missing witness charge with respect to thePeople's failure to call the codefendant in this case. Defendant made a prima facieshowing that he was entitled to a missing witness charge (see generally People v Hall, 18NY3d 122, 131 [2011]; People v Savinon, 100 NY2d 192, 196-197 [2003];People v Gonzalez, 68 NY2d 424, 427 [1986]). The burden then shifted to thePeople to show that the charge was inappropriate, and we conclude that they met thatburden (see generally People v Keen, 94 NY2d 533, 539 [2000]). Although thecodefendant was available to the People inasmuch as he pleaded guilty in connectionwith this case and entered into a cooperation agreement with the People to assist in otherunrelated criminal matters, the People established that he was not in their control forpurposes of defendant's prosecution (see generally Gonzalez, 68 NY2d at428-429; People v Onyia,70 AD3d 1202, 1205 [2010]; People v Hilts, 191 AD2d 779, 780-781[1993], lv denied 81 NY2d 1074 [1993]). Moreover, there is no guarantee thatthe codefendant would have provided testimony favorable to the People and, indeed, weconclude that the codefendant's testimony would have been "presumptively suspect. . . or subject to impeachment detrimental to the People's case" (People v Parton, 26 AD3d868, 869 [2006], lv denied 7 NY3d 760 [2006] [internal quotation marksomitted]; see People vMcLaurin, 27 AD3d 1117, 1118 [2006], lv denied 7 NY3d 759[2006]).
Finally, defendant's sentence is not unduly harsh or severe. Present—Scudder,P.J., Smith, Valentino, Whalen and DeJoseph, JJ.