S. Dean, Center for Appellate Litigation, New York (Marisa K.
Cabrera of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Dana Poole of
counsel), for respondent.
Sweeny, J.P., Andrias, Moskowitz, Kahn, Gesmer, JJ.
Supreme Court, New York County (Edward J. McLaughlin, J.),
rendered July 9, 2013, as amended September 27, 2013,
convicting defendant, after a jury trial, of criminal
possession of a weapon in the second degree, criminal sale of
a controlled substance in the second degree, criminal sale of
a firearm in the third degree, attempted criminal possession
of a weapon in the second and third degrees and attempted
criminal sale of a firearm in the third degree, and
sentencing him, as a second violent felony offender, to
concurrent terms aggregating 15 years, consecutive to a term
of 2 to 4 years, unanimously affirmed.
trial court correctly declined to issue an adverse inference
charge for the undisputedly nonnegligent destruction of
Rosario material (see CPL 240.45) due to
the flooding of a police facility during Hurricane Sandy in
2012. Even assuming that the loss of this material prejudiced
the defense, "[t]he loss of evidence as the result of a
natural disaster cannot be attributed to the People"
(People v Thompson, 143 A.D.3d 430');">143 A.D.3d 430 [1st Dept 2016]).
Moreover, it would be illogical for a jury to draw an adverse
inference against a party resulting from an event beyond that
party's reasonable ability to control.
reject defendant's challenges to the sufficiency and
weight of the evidence supporting the convictions for
attempted crimes, relating to a particular transaction
involving an inoperable weapon (see People v
Danielson, 9 N.Y.3d 342, 348-349 ). Defendant
claims there was a failure of proof of his intent that the
weapon at issue be operable. However, the evidence, including
defendant's overall conduct in a series of transactions,
supports the inference that he intended that the
codefendant's representations of operability, made to the
undercover purchaser, would be true, so as to satisfy the
customer and promote additional sales.
court properly delivered a charge on constructive possession,
because such an instruction was supported by the evidence and
the reasonable inferences to be drawn therefrom. In addition
to controlling the car in which the firearms transactions
took place, the evidence showed that defendant and the
codefendant were in joint control of the contraband (see
People v Tirado, 38 N.Y.2d 955');">38 N.Y.2d 955 ), because they
were engaged in joint criminal activity, and regardless of
each participant's physical proximity to any particular
weapon (see People v Ramos, 59 A.D.3d 269');">59 A.D.3d 269 [1st Dept
2009], lv denied 12 N.Y.3d 858');">12 N.Y.3d 858 ). Furthermore,
the constructive possession charge was applicable to
attempted possession under the facts presented, given the
underlying weapons-trafficking conduct.
court properly denied, without granting a hearing,
defendant's motion to suppress the undercover
officer's identification of defendant. Over the course of
the series of transactions, the officer developed a
familiarity with defendant that rendered the identification
confirmatory (see People v Baret, 43 A.D.3d 648, 649
[1st Dept 2007], affd 11 N.Y.3d 31');">11 N.Y.3d 31 ).
Batson claim (see Batson v Kentucky, 476
U.S. 79 ) is unpreserved, as it was raised only by the
codefendant, and the record does not establish that there was
a joint Batson application (see People v
Sadler, 281 A.D.2d 152, 153 [1st Dept 2001], lv
denied 96 N.Y.2d 867');">96 N.Y.2d 867 ); see also People v
Greene, 49 A.D.3d 275');">49 A.D.3d 275 [1st Dept 2008], lv
denied 10 N.Y.3d 934');">10 N.Y.3d 934 ). We decline to review this
claim in the interest of justice. As an
holding, we find that the record fails to support the