Appeals from two judgments of the Criminal Court of the City of New York, Kings County (Desmond A. Green, J.), rendered March 5, 2009.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on October 10, 2012
PRESENT: WESTON, J.P., RIOS and SOLOMON, JJ
The judgments convicted defendant, upon a jury verdict, of petit larceny and unauthorized use of a vehicle in the third degree, and, upon his plea of guilty, of unauthorized use of a vehicle in the third degree, respectively.
ORDERED that the judgments of conviction are affirmed.
The People charged defendant with petit larceny (Penal Law § 155.25), unauthorized use of a vehicle in the third degree (Penal Law § 165.05) and other offenses, based on an incident in which defendant entered a parked car through an unlocked rear window and was in the act of stealing a GPS device and automobile adapter when he was observed by the police and arrested. Minutes later, the complainant identified himself to the police as the vehicle's custodian and the owner of the stolen property, and denied that he knew defendant or had given defendant permission to enter the vehicle and take property therefrom. When the complainant stated that he needed the GPS device for his work, the arresting officers returned the device to the complainant, within several minutes of having recovered the evidence from the vehicle, and without photographing or vouchering same. At the jury trial, the complainant testified, among other things, that the GPS device and adapter were stolen from his vehicle several months after the incident herein. After trial, defendant was convicted of petit larceny and unauthorized use of a motor vehicle, and sentenced to concurrent terms of one year's incarceration. Defendant then pleaded guilty to another charge of unauthorized use of a motor vehicle, which charge had been pending under a different docket number, in satisfaction of several additional charges, and was sentenced to a year's incarceration to run concurrently with the sentences previously imposed.
On appeal, defendant argues that the Criminal Court, in error, failed to issue an adverse inference charge to the jury with respect to the People's failure to produce the GPS device and adapter as evidence (see Penal Law § 450.10 , ); that if the convictions after trial are reversed, the plea to the charge under the second docket number should be vacated as dependent on the resolution of the propriety of the trial convictions; and that, if the trial convictions are not disturbed, this court, in the interest of justice, should reduce each of the one-year sentences of incarceration by a day, to relieve defendant of certain potential deportation consequences. For the reasons that follow, we affirm the judgments of conviction.
It is not clear that the police ever assumed custody of the GPS device
and adapter within the contemplation of Penal Law § 450.10 (see People
v Chance, 71 AD3d 563, 564 ; People v Faucette, 201 AD2d 252,
253 ; People v Gayner H., 2 Misc 3d 44, 45 [App Term, 2d & 11th Jud Dists 2003]).
In any event, even if custody may be inferred from the facts, the GPS device and adapter had little or no value to
the defense, and it cannot be said that the police returned the evidence to the complainant in bad faith (People v Reyes, 27 AD3d 584 ).
Further, the People satisfactorily accounted for their inability to produce the evidence at the trial, and defense counsel was fully able to pursue the matter on cross-examination and summation. Thus, we perceive no prejudicial error in the court's failure to deliver an adverse inference charge with respect to the People's failure to produce the GPS device and adapter (id.; see
People v Kelly, 62 NY2d 516, 520 ). As a result, we need not
address defendant's claim regarding the consequences of a reversal of
the convictions after trial with respect to defendant's remaining
judgment of conviction, which claim, in any event, would be without
merit (People v Kalinowski, 84 AD3d 1739 ).
Assuming, without deciding, that this court has the authority to reduce a sentence already served in the interest of justice based on possible deportation consequences, rather than treating such issue as having been rendered academic (People v Bakare, 280 AD2d 679 ; People v Cuaran, 261 AD2d 169 ; see People v Rodriguez, 18 NY3d 667, 670 ; People v Delgado, 80 NY2d 780, 782 ; cf. People v McLaine, 64 NY2d 934 ; People v Williams, 10 Misc 3d 134[A], 2005 NY Slip Op 52097[U] [App Term, 2d & 11th Jud Dists 2005]), we would decline to do so in light of defendant's numerous arrests and convictions for a variety of criminal offenses, and his involvement with narcotics, since entering the United States.
Accordingly, the judgments of conviction are affirmed. Weston, J.P., Rios and Solomon, JJ., concur. ...