| People v Viruet |
| 2015 NY Slip Op 06687 [131 AD3d 714] |
| August 26, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Miguel Viruet, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered January 8, 2013, convicting him of murder in the second degreeand criminal possession of a weapon in the second degree (two counts), upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the identification evidence isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's identity as the perpetrator and his guilt ofthe crimes of which he was convicted beyond a reasonable doubt. Moreover, in fulfillingour responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's claim that the Supreme Court deprived him of his right to a publictrial is unpreserved for appellate review (see People v Barnes, 125 AD3d 990, 991 [2015]; People v Borukhova, 89 AD3d194, 225 [2011]). In any event, the defendant's contention is without merit.
The Supreme Court properly declined to give an adverse inference charge withrespect to a missing surveillance videotape. There was no evidence that the video camerarecorded anything relevant to the case, and the evidence suggested otherwise (see People v Rasako, 78 AD3d498 [2010]; People vHooks, 71 AD3d 1184, 1186 [2010]). Furthermore, defense counsel thoroughlycross-examined the officer about the missing videotape and utilized its loss as part of hissummation, and there was no prejudice to the defendant, since the two witnesses whohad seen the videotape prior to its loss testified that the shooter was not depicted in thevideotape (see People vMartinez, 22 NY3d 551 [2014]; [*2]People vMitchell, 216 AD2d 156, 156-157 [1995]; People v Haupt, 128 AD2d 172,174-175 [1987], affd 71 NY2d 929 [1988]).
The defendant's contention that the Supreme Court failed to provide an expandedidentification charge and that such failure deprived him of a fair trial is unpreserved forappellate review (see CPL 470.05 [2]; People v Baxter, 102 AD3d 805 [2013]). In any event, thedefendant's contention is without merit (see People v Knight, 87 NY2d 873[1995]; People v Patrick,102 AD3d 892 [2013]).
Viewing the record as a whole, the defendant was afforded meaningfulrepresentation and, thus, was not deprived of effective assistance of counsel (seeStrickland v Washington, 466 US 668 [1984]; People v Benevento, 91 NY2d708 [1998]).
The defendant's remaining contention is without merit. Dillon, J.P., Chambers, Halland Duffy, JJ., concur.