| People v Matos |
| 2016 NY Slip Op 02585 [138 AD3d 426] |
| April 5, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Hector Matos, Appellant. |
Cardozo Criminal Appeals Clinic, New York (Stanley Neustadter of counsel), forappellant.
Hector Matos, appellant pro se.
Robert T. Johnson, District Attorney, Bronx (Clara Salzberg of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), renderedFebruary 25, 2013, convicting defendant, after a jury trial, of manslaughter in the firstdegree and criminal possession of a weapon in the fourth degree, and sentencing him, asa persistent violent felony offender, to an aggregate term of 22 years to life, unanimouslyaffirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. The evidence disproved defendant's justification defense beyond areasonable doubt.
Defendant was not entitled to an adverse inference charge with respect tosurveillance video footage of the moments after the shooting, which the police did notcopy from the recording system of the building where the crime occurred. "The Peoplehave no constitutional or statutory duty to acquire, or prevent the destruction of, evidencegenerated and possessed by private parties" (People v Banks, 2 AD3d 226, 226 [1st Dept 2003], lvdenied 2 NY3d 737 [2004]), and "[t]he fact that a police officer viewed the [videorecording] did not place it within the People's constructive possession or control" (People v Turner, 118 AD3d463, 463 [1st Dept 2014], lv denied 23 NY3d 1068 [2014]). In any event,without resort to speculation, "there is no indication that there was anything exculpatoryon the tape" (Banks, 2 AD3d at 226).
Defendant has not established that a "significant" portion of the trial minutes havebeen lost (see People vParris, 4 NY3d 41, 44 [2004]). Although the minutes for one day of juryselection are missing, the record indicates that those minutes only involve sworn andprospective jurors who were excused by the court when it granted defendant's applicationto start jury selection over again. Accordingly, there is no need for a reconstructionhearing.
Defendant's pro se ineffective assistance of counsel claims may not be addressed on[*2]direct appeal because they involve matters outside therecord (see People v Love, 57 NY2d 998 [1982]).
We have considered and rejected defendant's remaining pro se claims.Concur—Tom, J.P., Friedman, Richter, Gische and Gesmer, JJ.