| People v Butler |
| 2016 NY Slip Op 04512 [140 AD3d 1610] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBernard J. Butler, Also Known as Bernard Faulks, Appellant. |
Bridget L. Field, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.),rendered May 22, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree (two counts) and assault in thesecond degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1] [b]; [3]) and one count of assault in the second degree(§ 120.05 [2]). Defendant's conviction stems from his conduct in shootingthe victim, striking him in the buttocks. Defendant contends that the evidence is legallyinsufficient to establish that he was the shooter, that the weapon was operable, and thatthe victim sustained a physical injury. We reject those contentions. Two eyewitnessesidentified defendant as the shooter and described the gun. Two cartridge cases werefound at the scene, and the People's expert testified that they came from one firearm. Thatevidence is sufficient to establish defendant's identity and the operability of the firearm(see People v Ciola, 136 AD2d 557, 557 [1988], lv denied 71 NY2d 893[1988]). Although there were minor inconsistencies in the testimony of the eyewitnesses,those inconsistencies do not render their testimony incredible as a matter of law (see People v Harris, 56 AD3d1267, 1268 [2008], lv denied 11 NY3d 925 [2009]). The People furtherestablished, through the testimony of the People's witnesses and the victim's medicalrecords, that the victim sustained a physical injury inasmuch as he experienced"substantial pain" from the gunshot (People v West, 129 AD3d 1629, 1631 [2015], lvdenied 26 NY3d 972 [2015]; see People v Chiddick, 8 NY3d 445, 447 [2007]). Viewingthe evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict isagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
We reject defendant's contention that the photo arrays were unduly suggestive andthus that Supreme Court erred in refusing to suppress the identification testimony (seegenerally People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833[1990]). All of the men in the photo arrays were of similar complexion, had similarhaircuts and facial hair, and had a teardrop tattoo underneath the left eye, which waseither computer-generated or drawn in ink. The fact that defendant was the only onewearing a hooded sweatshirt is of no moment considering that each man was wearingunique clothing. While the background of defendant's photograph was darker than that ofthe other photographs, we conclude that "[t]he composition and presentation of the photoarray[s] were such that there was no reasonable possibility that the attention of thewitness[es] would be drawn to defendant as the suspect chosen by the police" (People v Sylvester, 32 AD3d1226, 1227 [2006], lv denied 7 NY3d 929 [2006]; see People vBoria, 279 AD2d 585, 586 [2001], lv denied 96 NY2d 781 [2001];People v Floyd, 173 AD2d 211, 212 [1991], lv denied 78 NY2d 966[1991]).
Contrary to defendant's contention, the court did not err in denying his request for a[*2]missing witness charge with respect to two witnesses.Defendant failed to meet his initial burden of establishing that one witness would providetestimony favorable to the prosecution (see People v Simon, 71 AD3d 1574, 1575 [2010], lvdenied 15 NY3d 757 [2010], reconsideration denied 15 NY3d 856 [2010];People v Karas, 21 AD3d1360, 1361 [2005], lv denied 5 NY3d 883 [2005], reconsideration denied6 NY3d 814 [2006]; see generally People v Gonzalez, 68 NY2d 424, 427[1986]), and the People established with respect to the other witness that his testimonywould be cumulative to the testimony of the other witnesses (see People v Carr, 59 AD3d945, 946 [2009], affd 14 NY3d 808 [2010]; People v Hawkins, 84 AD3d1736, 1737 [2011], lv denied 17 NY3d 806 [2011]).
We agree with defendant that the court erred in refusing to give an adverse inferencecharge based on the People's failure to preserve surveillance tapes (see People v Handy, 20 NY3d663, 669 [2013]). Defendant used reasonable diligence in requesting those tapes,which captured "evidence that [was] reasonably likely to be of material importance"(id. at 665), i.e., a video in the area where the crime occurred, from camerasoperated by the City of Rochester Police Department.
We respectfully disagree with our concurring colleague that the State's duty topreserve surveillance videos is not triggered until a request has been made by thedefendant. The Court of Appeals in Handy did not make any suchpronouncement, but rather held that "when a defendant in a criminal case, acting withdue diligence, demands evidence that is reasonably likely to be of material importance,and that evidence has been destroyed by the State, the defendant is entitled to an adverseinference charge" (id.). By way of further guidance, and of particular relevance tothis case, the Court stated that "the authorities in charge should, when something that willforeseeably lead to criminal prosecution occurs, take whatever steps are necessary toinsure that the video will not be erased—whether by simply taking a tape or discout of a machine, or by instructing a computer not to delete the material" (id. at669). To conclude that the duty to preserve is not triggered until a request is made by thedefendant would only give an incentive to State agents to destroy the evidence before thedefendant has a chance to request the tapes. Such a rule would also directly contravenethe explicit policy underlying the Court's rationale in Handy, namely, to "give[ ]the State an incentive to avoid the destruction of evidence" and to "raise theconsciousness of State employees on this subject" (id.).
Although we conclude that the court erred in failing to give the requested adverseinference charge, we further conclude that the error is harmless (see People v Bradley, 108AD3d 1101, 1102 [2013], lv denied 22 NY3d 1039 [2013]). The evidence ofguilt is overwhelming, and there is no reasonable possibility that the absence of anadverse inference charge contributed to the conviction (see People v Blake, 105 AD3d431, 431 [2013], affd 24 NY3d 78 [2014]; see generally People vCrimmins, 36 NY2d 230, 237 [1975]).
Defendant failed to preserve for our review his contention that the court'sSandoval ruling constitutes an abuse of discretion (see People v Tolliver, 93AD3d 1150, 1151 [2012], lv denied 19 NY3d 968 [2012]; People v Jackson, 46 AD3d1408, 1409 [2007], lv denied 10 NY3d 841 [2008]). In any event, we rejectthat contention. "[T]he court's Sandoval compromise, in which it limitedquestioning on defendant's prior convictions for [ ]related offenses to whether defendanthad been convicted of a felony or misdemeanor on the appropriate date, 'reflects a properexercise of the court's discretion' " (People v Stevens, 109 AD3d 1204, 1205 [2013], lvdenied 23 NY3d 1043 [2014]). Defendant also failed to preserve for our review hiscontention that the indictment was multiplicitous because it charged criminal possessionof a weapon in the second degree in more than one count (see People v Jefferson, 125AD3d 1463, 1464 [2015], lv denied 25 NY3d 990 [2015]). In any event, thatcontention is without merit (seePeople v Simmons, 133 AD3d 1275, 1277 [2015]). We reject defendant'sfurther contention that we should reverse one of the two convictions of criminalpossession of a weapon in the second degree in the interest of justice because the twocounts were based upon his possession of the same weapon. We see no reason to do soinasmuch as the "two counts are separate crimes" (People v Rice, 5 AD3d 1074, 1074 [2004], lvdenied 2 NY3d 805 [2004]). Finally, the sentence is not unduly harsh or severe.
All concur except Curran, J., who concurs in the result in the followingmemorandum.
Curran, J. (concurring). I concur in the result reached by the majority, but I writeseparately because, in my view, an adverse inference charge based on the People's failureto preserve surveillance video(s) is not required by People v Handy (20 NY3d 663 [2013]), as explained in People v Durant (26 NY3d341 [2015]). I agree with the majority that People v Handy (20 NY3d 663 [2013]) stands for the verybroad proposition [*3]that the People must preserveevidence as of the time "when something that will foreseeably lead to criminalprosecution occurs" (20 NY3d at 669). Moreover, inasmuch as the record before ourCourt in Handy showed that the subject video evidence pertaining to the firstjailhouse arrest was recorded over before a criminal proceeding was commenced, it isclear that the duty to preserve evidence established in Handy arose before thedefendant was even charged with a crime for the subject incident. While I fear that such abroad duty to preserve evidence places a huge burden on the People, especially in light ofthe enormous amount of electronic and digital information that is collected these days, Iconcur with the majority that Handy has such a wide scope.
This case provides a glimpse of the burden created by Handy. There areapproximately 50 so-called "blue light" cameras strategically placed throughout the Cityof Rochester (City of Rochester, NY, Police Overt Digital Surveillance System,http://www.cityofrochester.gov/article.aspx?id=8589936528). The surveillance videohere is from one such camera and involved one brief incident that may or may not havebeen captured by the camera. In this case, the police thought to look at the video anddetermined that the assault was not captured on it and therefore did not suspend thevideo's automatic destruction. The majority and I agree that, based on Handy, anadverse inference charge is required here. Thus, the jury would be instructed that it ispermitted to "infer that the destroyed evidence would have been favorable to the defense"(CJI2d[NY] Adverse Inference—Destroyed Evidence). Contrary to the patternjury instructions in civil cases (1A NY PJI3d 1:77, 1:77.1 [2016]), this instruction wouldbe without consideration of whether the jury concluded that the missing evidence wasrelevant (i.e., significant to its deliberations) and without consideration of whether thejury accepted the People's explanation for the destruction of the evidence, assuming thetrial court allowed testimony on that subject (see People v Cyrus, 48 AD3d 150, 159 [2007], lvdenied 10 NY3d 763 [2008] [police officer's testimony regarding content ofvideotape "likely inadmissible" under best evidence rule]). I submit that this is a harshand unwarranted remedy for what occurred here, but the majority and I agree that this isthe remedy required by Handy.
Nevertheless, perhaps realizing the extraordinary burden on the People created by thebreadth of the Handy rule, the Court of Appeals in People v Durant (26 NY3d341 [2015]) explained that, in Handy, the defendant had been charged with acrime in a felony complaint, the defendant had filed an omnibus motion demanding theevidence generated by electronic surveillance of the incident, and, "[d]espite thedefendant's demand for such evidence, the police destroyed the surveillance imagessometime between the defendant's arraignment on the complaint and the filing of theindictment" (26 NY3d at 349 [emphasis added]). That explication of the facts isconsistent with the interpretation given to Handy by the Committee on CriminalJury Instructions in the adverse inference charge concerning destroyed evidence(see CJI2d[NY] Adverse Inference—Destroyed Evidence ["On or about(date), the defense requested that evidence. Thereafter, the agentsof the government destroyed it" (emphasis added)]).
Here, the record shows that the first demand by the defense for the surveillancevideo(s) was after the video(s) had been destroyed pursuant to the normal businesspractices of the City of Rochester Police Department. Thus, as compelled by Durant'sexplanation of Handy, the duty to preserve the surveillance video(s) was nottimely triggered here and an adverse inference charge is not required.Present—Centra, J.P., Peradotto, Carni, Curran and Troutman, JJ.