| People v Kobbah |
| 2019 NY Slip Op 00401 [168 AD3d 562] |
| January 22, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Modechai Kobbah, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Paul Wiener of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Julia Chariott of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered March 18,2013, convicting defendant, after a jury trial, of attempted assault in the third degree, andsentencing him to a term of 90 days, unanimously affirmed.
Defense counsel failed to provide details to support the claim that the police may haverendered defendant's own lineup suggestive by using the same set of fillers that had been used inthe uncharged suspect's lineup the day before. Accordingly, the court providently exercised itsdiscretion in denying disclosure of the lineup photo and related relief.
Although the court erred in failing to give the jury a limiting instruction that the victim'smother's testimony recounting her son's description of her assailant was not admitted for thetruth, the error was harmless (see People v Crimmins, 36 NY2d 230 [1975]).
The court providently exercised its discretion in denying defendant's request for an adverseinference instruction regarding an inadvertently destroyed 911 tape. Defendant was notprejudiced, because the Sprint report afforded him sufficient opportunity for impeachment (see People v Brown, 92 AD3d455, 456 [1st Dept 2012], lv denied 18 NY3d 955 [2012]). Concur—Sweeny,J.P., Richter, Tom, Kern, Singh, JJ.