| People v Ignacio |
| 2017 NY Slip Op 01710 [148 AD3d 824] |
| March 8, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daniel Ignacio, Appellant. |
Lynn W. L. Fahey, New York, NY (De Nice Powell of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum,and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered April 4, 2013, convicting him of murder in the second degree (five counts), assault inthe first degree, assault in the second degree (nine counts), and arson in the fourth degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's request foran adverse inference charge as a sanction for the People's inability to produce remnants of a babycarriage at trial. The People demonstrated that the evidence had been stored at the propertyclerk's Kingsland Evidence Facility in Greenpoint, Brooklyn, and could not be produced at trialbecause of flooding and contamination of that facility caused by Hurricane Sandy. Moreover, thedefendant failed to demonstrate that he suffered any prejudice as a result of the People's inabilityto produce the carriage remnants. Photographs of the carriage remnants were introduced at trial,affording defense counsel the opportunity to cross-examine the People's witnesses with respect toits appearance and identity. Defense counsel was also able to cross-examine the criminologistwho performed a substance analysis on the carriage remnants regarding his findings of thepresence of an ignitable liquid. Since the People did not act in bad faith and the defendant wasnot prejudiced by the People's failure to produce the evidence at trial, the court did notimprovidently exercise its discretion in declining to give an adverse inference charge (see People v Handy, 20 NY3d 663[2013]; People v Austin, 134 AD3d559 [2015]; People v Hester,122 AD3d 880, 880-881 [2014]; People v Rice, 39 AD3d 567 [2007]).
The defendant's contention that the evidence was legally insufficient to establish that eightfirefighters who responded to the scene suffered a "physical injury" (Penal Law§ 10.00 [9]) to support his convictions of assault in the second degree as chargedunder counts 8, 9, 10, 11, 13, 14, 15, and 16, is unpreserved for appellate review (seeCPL 470.05 [2]) and, in any event, without merit. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt on each disputed count (see People v Danielson, 9 NY3d342, 349 [2007]; People vPerry, 122 AD3d 775 [2014];People v Kenner, 77 AD3d 853 [2010]; People v Wade, 41 AD3d 288 [2007]). Moreover, in fulfilling ourresponsibility to conduct an [*2]independent review of the weightof the evidence with regard to counts 8, 9, 10, 11, 13, 14, 15, and 16 (see CPL 470.15 [5];People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt on each of those counts was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]). Dillon, J.P., Austin, Hinds-Radix and Maltese, JJ.,concur.