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People v. Lagoa

Supreme Court of New York, Second Department

January 8, 2020

The People, etc., respondent,
v.
Felix Lagoa, appellant. Ind. No. 6481/11

          Submitted - October 31, 2019

          D61812 Q/htr

          Paul Skip Laisure, New York, NY (Joshua M. Levine of counsel), for appellant, and appellant pro se.

          Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, Camille O'Hara Gillespie, and Sullivan & Cromwell LLP [Veronica W. Ip and Samuel S. Brickfield], of counsel), for respondent.

          REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN ROBERT J. MILLER COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (William E. Garnett, J.), rendered February 14, 2014, convicting him of attempted murder in the second degree and robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.

         ORDERED that the judgment is affirmed.

         The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2]; see 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, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see

         Where a defendant claims that the People should be sanctioned for the loss or destruction of evidence, "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 Haupt, 71 N.Y.2d 929, 931; see People v Seignious, 114 A.D.3d 883, 884). "The court's determination of the appropriate sanction must be based primarily upon the need to eliminate prejudice to the defendant" (People v Rice, 39 A.D.3d 567, 568-569).

         Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying the defendant's motion to preclude testimony referring to certain evidence, including jewelry display cases found near the defendant's vehicle and an earring back found in the defendant's vehicle, which the People were unable to produce at trial. The People demonstrated that the items at issue had been stored in a storage facility that was flooded during Hurricane Sandy and that, as a result, the warehouse was closed by the Occupational Safety and Health Administration and the evidence could not be recovered. Under these circumstances, the loss of evidence cannot be attributed to the People (see People v Lowery, 150 A.D.3d 890, 891; People v Castro, 149 A.D.3d 862, 865; People v Ignacio, 148 A.D.3d 824, 825). Moreover, the defendant failed to demonstrate that he suffered prejudice as a result of the People's inability to produce the subject property. Despite the unavailability of the physical evidence, photographs of the property were introduced at trial, and defense counsel had the opportunity to cross-examine the People's witnesses regarding the missing evidence (see People v Castro, 149 A.D.3d at 865; People v Hester, 122 A.D.3d 880, 880). Although the defendant now claims that he was deprived of the opportunity to inspect and test the evidence, he never sought to examine the evidence until its loss was disclosed, even though the physical evidence was available to defense counsel for more than a year prior to Hurricane Sandy (see People v Fermin, 150 A.D.3d 876, 880; People v Castro, 149 A.D.3d at 865).

         The defendant's further contention that the Supreme Court should have given an adverse inference charge for the missing evidence is, for the same reason, without merit (see People v Lowery, 150 A.D.3d at 891-892; People v Ignacio, 148 A.D.3d at 825; People v Hester, 122 A.D.3d 880, 880-881). Because the defendant does not seek to dismiss the indictment for an alleged denial of due process of law based on the People's failure to preserve the evidence, but only to preclude reference to the evidence and an adverse inference charge, we do not address the defendant's constitutional argument under Arizona v Youngblood (488 U.S. 51) (see People v Handy, 20 N.Y.3d 663, 668).

         The defendant's contention that his adjudication as a persistent felony offender violated his right to a jury trial pursuant to Apprendi v New Jersey (530 U.S. 466) is without merit (see People v Prindle, 29 N.Y.3d 463; People v Bell, 15 N.Y.3d 935; People v Quinones, 12 N.Y.3d 116; People v Rivera, 5 N.Y.3d 61; People v Rosen, 96 N.Y.2d 329).

         The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 A.D.3d 1108, 1109; see People v Evans, 16 N.Y.3d 571, 575 n 2). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 A.D.3d 805, 806; People v Maxwell, 89 A.D.3d at 1109).

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


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