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People v. Castro

Supreme Court of New York, Second Department

April 12, 2017

The People of the State of New York, respondent,
v.
Manuel Castro, appellant. Ind. No. 7271/11

          Lynn W. L. Fahey, New York, NY (Lauren E. Jones of counsel), for appellant.

          Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Jean M. Joyce of counsel), for respondent.

          REINALDO E. RIVERA, J.P. SHERI S. ROMAN ROBERT J. MILLER COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered January 8, 2013, convicting him of robbery in the first degree, attempted assault in the first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

         ORDERED that the judgment is affirmed.

         The defendant was convicted of robbery in the first degree, attempted assault in the first degree, and criminal possession of a weapon in the fourth degree arising out of an incident on August 22, 2011, wherein the victim was attacked with a knife when the perpetrator was attempting to take her purse. At trial, the People presented evidence establishing that the defendant was the perpetrator of the crime; the evidence included, among other things, identification testimony of a showup of the defendant conducted at the scene of the crime and the victim's DNA evidence found on the defendant's jacket and boots, and on a box cutter.

         The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the showup identification testimony. "While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" (People v Chipp, 75 N.Y.2d 327, 335; see People v Jackson, 98 N.Y.2d 555, 559; People v Staton, 138 A.D.3d 1149, 1149, affd 28 N.Y.3d 1160). Showup procedures, although generally disfavored, are permissible where employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification (see People v Duuvon, 77 N.Y.2d 541, 544; People v Mais, 71 A.D.3d 1163, 1165). Here, the People met their burden by establishing that the defendant was detained approximately three blocks from the crime scene and within minutes of the crime being reported (see People v Rice, 39 A.D.3d 567, 568; People v Gilyard, 32 A.D.3d 1046, 1046). The showup procedure here was not unduly suggestive. Contrary to the defendant's contention, it was not improper for the officers to conform the defendant's appearance to that of the description provided by the dispatcher by placing the defendant's own jacket and hat on him, where there was no evidence that the victim observed them doing so (see People v Dennis, 125 A.D.2d 325, 326; People v Mayers, 100 A.D.2d 558, 558). It was also not improper for the officer to inform the witnesses that an individual had been taken into custody, or to ask the victim if the defendant was the person who had robbed her (see People v Rodriguez, 64 N.Y.2d 738, 740; People v Bartlett, 137 A.D.3d 806, 807; Matter of Madeline D., 125 A.D.3d 965, 966; People v Fox, 11 A.D.3d 709, 709). Nor does the fact that the defendant was shown in the presence of other officers and illuminated by flashlights render the showup unduly suggestive (see People v Gilford, 16 N.Y.3d 864, 866-868; People v Bartlett, 137 A.D.3d at 807). The defendant's remaining contention, that the complainant was improperly influenced at the time of identification, is speculative (see People v Berry, 50 A.D.3d 1047, 1048; People v George, 4 A.D.3d 142, 142; People v Dottin, 255 A.D.2d 521).

         The defendant's contention that the evidence was legally insufficient to support his conviction of attempted assault in the first degree is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt, beyond a reasonable doubt, of attempted assault in the first degree (Penal Law §§ 110.00; 120.10[1]), including his intent to cause serious physical injury (see People v Bracey, 41 N.Y.2d 296, 301-302; People v Ambroise, 133 A.D.3d 770, 771; People v Ramos, 80 A.D.3d 716, affd 19 N.Y.3d 133; People v Gill, 20 A.D.3d 434). Moreover, upon our independent review of the record (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we are satisfied that the verdict of guilt as to the crime of attempted assault in the first degree was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 643-644).

         The Supreme Court providently exercised its discretion in denying the defendant's motion to preclude testimony referring to the blood-stained jacket, boots, and box cutter, which the People were unable to produce at trial. "Where a defendant claims that the loss of evidence deprived him of a fair trial, the court must consider a number of factors including the proof available at trial, the significance of the missing evidence and whether the loss was intentional or inadvertent" (People v Rice, 39 A.D.3d at 568, citing People v Haupt, 71 N.Y.2d 929, 931; see People v Seignious, 114 A.D.3d 883, 884). "The court's determination of an appropriate sanction must be based primarily on the need to eliminate prejudice to the defendant" (People v Rice, 39 A.D.3d at 568-569).

         Here, the People demonstrated that the items at issue had been stored in a storage facility that was flooded during Hurricane Sandy. As a result of the flooding, the building was designated a HAZMAT site and the evidence stored in the facility could not be recovered by the People. Under these circumstances, the loss of evidence cannot be attributed to the People (see People v Thompson, 143 A.D.3d 430; People v Daly, 140 A.D.3d 593, 594; People v Austin, 134 A.D.3d 559, 559-560; People v Hester, 122 A.D.3d 880, 880). Moreover, the defendant has failed to demonstrate that he suffered prejudice as a result of the People's inability to produce the property. Despite the unavailability of the physical evidence, photographs of the property were introduced at trial and defense counsel had ample opportunity to cross-examine the People's witnesses regarding the missing evidence, challenge the chain of custody, and raise any applicable arguments during summation (see People v Hester, 122 A.D.3d at 880; People v Perez, 255 A.D.2d 403, 403-404; People v Callendar, 207 A.D.2d 900, 900; People v Riviere, 173 A.D.2d 871, 871-872). Notably, the defendant never sought to examine the property until the loss of evidence was disclosed (see People v Mendez, 279 A.D.2d 434, 434; People v Riviere, 173 A.D.2d at 871-872). The physical evidence was available to defense counsel months prior to Hurricane Sandy. The defendant's contention, argued in the alternative, that the Supreme Court erred in not giving an adverse inference charge for the missing evidence, is unpreserved for appellate review (see CPL 470.05[2]; People v Roe, 196 A.D.2d 899, 900) and, in any event, for the same reasons as above, without merit (see People v Ignacio, ___ A.D.3d ___, 2017 NY Slip Op 01710 [2d Dept 2017]; People v Austin, 134 A.D.3d at 562-563; People v Hester, 122 A.D.3d at 880-881; People v Rice, 39 A.D.3d at 568-569).

         The defendant's contention that the testimony of a criminalist employed by the Office of the Chief Medical Examiner of the City of New York violated his right to confrontation is unpreserved for appellate review (see CPL 470.05[2]; People v Liner, 9 N.Y.3d 856, 856-857; People v Abuziyad, 136 A.D.3d 837) and, in any event, without merit. Here, the testifying criminalist performed her own analysis of the DNA profiles, concluded that there was a DNA match, and issued the final report, which was challenged on cross-examination (see People v John, 27 N.Y.3d 294, 315; People v Beckham, 142 A.D.3d 556, 556; People v Fernandez, 115 A.D.3d 977, 978-979).

         The defendant's contention that certain of the prosecutor's opening and summation remarks constituted reversible error is, for the most part, unpreserved for appellate review (see CPL 470.05[2]; People v Morales, 87 A.D.3d 1165, 1166). In any event, the challenged remarks were either within the bounds of permissible rhetorical comment, responsive to the defendant's summation, or did not constitute reversible error (see People v Galloway, 54 N.Y.2d 396, 401; People v Maldonado, 55 A.D.3d 626, 627-628; People v Williams, 144 A.D.2d 403; People v Torres, 121 A.D.2d 663, 664).

         The defendant's contention that defense counsel's failure to preserve certain claims for appellate review constituted ineffective assistance of counsel is without merit (see People v Bedford, 95 A.D.3d 1226, 1227; People v Erskine, 90 A.D.3d 674, 675; People v Greenlee, 70 A.D.3d 966, 967).

         The sentence imposed was not excessive (see People v ...


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