Opinion
KA 00-02664
June 13, 2003.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered February 24, 1997, convicting defendant after a jury trial of assault in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM A. SMITH, DEFENDANT-APPELLANT PRO SE.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Following a jury trial, defendant was convicted of assault in the first degree (Penal Law 120.10) for slitting the victim's throat with a knife. The sole issue at trial was the identification of defendant as the perpetrator of the crime. Contrary to defendant's contention, the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). The victim testified at trial that she knew defendant from her neighborhood and had met him on several prior occasions. Defendant further contends that the victim's in-court identification of him should have been suppressed because the photo array shown to the victim one month after the attack was unduly suggestive. We disagree, and conclude that "the viewer's attention is not drawn to defendant's photo in such a way as to indicate that the police were urging a particular selection" ( People v. Rogers, 245 A.D.2d 1041, 1041; see People v. Merriweather, 298 A.D.2d 950, lv denied 99 N.Y.2d 561; People v. Martinez, 298 A.D.2d 897, 897-898, lv denied 98 N.Y.2d 769, [2002], cert denied 538 U.S. ___ 123 S.Ct. 1752).
Although a piece of paper with the name "Billy" and a phone number on it was found at the scene of the crime, that piece of paper could not be located and was not produced at trial. Upon being informed of the loss of the evidence, defendant raised a Brady objection and sought dismissal of the indictment, a mistrial or an adverse inference charge. Supreme Court granted defendant's request for an instruction, but gave an instruction that did not include the language requested by defendant. Following defendant's objection, the court gave a supplemental instruction, to which defendant did not object. By failing to object to the supplemental charge, defendant is deemed to have been satisfied by the relief afforded ( see People v Whalen, 59 N.Y.2d 273, 280; see also People v. McNear, 265 A.D.2d 810, 811, lv denied 94 N.Y.2d 864; People v. Jakes, 181 A.D.2d 913, 914, lv denied 80 N.Y.2d 832). In any event, "[t]he exculpatory potential of this evidence being purely speculative, its destruction by the police does not violate the Brady rule" ( People v. LaBounty, 127 A.D.2d 989, 989, lv denied 69 N.Y.2d 1005; see People v. Briggs, 81 A.D.2d 1017).
Defendant has failed to preserve for our review his contention that the loss or destruction of the piece of paper constitutes a Rosario violation ( see People v. Dickson, 260 A.D.2d 931, 932-933, lv denied 93 N.Y.2d 1017; see also People v. Rogelio, 79 N.Y.2d 843, 844). In any event, the court did not abuse its discretion in fashioning an appropriate sanction for the loss of that evidence ( see People v Martinez, 71 N.Y.2d 937, 940).
Defendant also failed to preserve for our review his contention that the court violated CPL 310.30 in responding to the jury's request for a copy of the indictment. "The court read the note in open court before responding to [it], and `[d]efendant did not lodge any objection to the manner of proceeding or the substance of the court's response'" ( People v. Howard, 267 A.D.2d 1006, 1007, lv denied 95 N.Y.2d 835, cert denied 532 U.S. 999, quoting People v. Starling, 85 N.Y.2d 509, 514; see People v. Brundidge, 231 A.D.2d 847, lv denied 89 N.Y.2d 920; cf. People v. DeRosario, 81 N.Y.2d 801, 803). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).
Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147). We further conclude that defendant was not denied a fair trial by prosecutorial misconduct on summation. Defendant failed to object to all but one of the alleged improper statements and thus failed to preserve for our review his challenges to those statements ( see People v. Perez, 298 A.D.2d 935, 937, lv denied 99 N.Y.2d 562). The statement to which defendant objected concerned specific testimony, and the court properly instructed the jurors that it was their role to determine what the testimony had been. In any event, "the comments made by the prosecutor were not so inflammatory or egregious as to amount to a denial of due process" ( People v. Alshoaibi, 273 A.D.2d 871, 873, lv denied 95 N.Y.2d 960).
Although the CPL 400.16 predicate felony statement failed to include the term of incarceration for one of defendant's prior violent felony convictions, defendant failed to raise any objection to that defect and thus failed to preserve for our review his contention that the court illegally sentenced him as a persistent violent felony offender ( see People v. Polite, 223 A.D.2d 564, 564-565, lv denied 88 N.Y.2d 852; see also People v. Proctor, 79 N.Y.2d 992, 993). In any event, the court supplied the missing dates to defendant, who admitted the convictions. Thus, "to remit this matter for `resentencing would be futile and pointless'" ( People v. Ford, 262 A.D.2d 1052, 1053, lv denied 93 N.Y.2d 1044, quoting People v. Bouyea, 64 N.Y.2d 1140, 1142).