People v. Smith

Ap

Defendant was convicted of robbery in the first degree as a consequence of his January 1995 assault upon a 70-year-old woman in the City of Troy, Rensselaer County, during which he forcibly seized her purse causing her to fall and break her arm (see, Penal Law § 160.15 [1]). At trial, the People presented the testimony of an eyewitness who had observed defendant at close range fleeing with the purse and rummaging through it, and who identified defendant in court. Defendant was sentenced as a second felony offender to 8V2 to 17 years in prison. Thereafter, County Court granted defendant a hearing on his CPL 440.10 motion, which it later denied. Defendant appeals from the judgment of conviction and, with permission, from the denial of his CPL 440.10 motion, raising numerous issues, none of which warrant disturbing the judgment and order appealed from.

As an initial matter, we find that County Court acted within the proper bounds of its discretion in electing to provide an adverse inference charge as a sanction for the People’s destruction or loss of a sketch drawn by the eyewitness during a pretrial meeting with the prosecution (see, People v Banch, 80 NY2d 610 , 616; People v Martinez, 71 NY2d 937 , 940; People v Haupt, 71 NY2d 929 , 931). Assuming, without deciding, that the sketch of the area where the sole-testifying eyewitness observed defendant with the purse was Rosario material (see, People v Rosario, 9 NY2d 286 , cert denied 368 US 866 ; see also, CPL 240.45 [1] [a]; 240.20 [1] [d]), the imposition of an adverse inference charge as a sanction rather than dismissal of the charges or preclusion of the witness’s testimony was adequate and appropriate under the circumstances, especially in light of County Court’s well-founded conclusion that its destruction was inadvertent and without prejudice to defendant (see, People v Banch, supra, at 616 ; People v Martinez, supra, at 940 ; People v Haupt, supra, at 931 ; People v Kelly, 62 NY2d 516 , 521; People v Duffy, 206 AD2d 679 , lv denied 84 NY2d 907 ; cf., People v Wallace, 76 NY2d 953 , 955). Contrary to defendant’s contentions, “[d]ismissal of the charges is an extreme sanction which ‘should not be invoked where [as here] less severe measures can rectify the harm done by the loss’ of the material” (People v Banch, supra, at 616 , quoting People v Kelly, supra, at 521 ).

Regarding defendant’s contention that there were two instances in which police officers’ testimony impermissibly bolstered the sole eyewitness’s identification of defendant, the record reflects that in the first instance defense counsel did not object but County Court immediately interjected, cutting off the officer’s improper testimony. In the second instance, defense counsel failed to timely object and County Court ultimately struck the improper testimony and provided a curative instruction to the jury to disregard that testimony. This issue is thus unpreserved (see, People v Luperon, supra, at 78 ) and any error was most certainly harmless in view of the eyewitness’s unequivocal and well-grounded identification testimony (see, People v Cruz, 214 AD2d 952 , 952-953, lv denied 86 NY2d 793 ) and the overwhelming evidence of defendant’s guilt (see, People v Johnson, 57 NY2d 969 , 970; People v Crimmins, 36 NY2d 230 , 241-242). Further, we find no extraordinary circumstances or abuse of discretion in the sentence imposed upon defendant, which was not the maximum permitted, for this act of violence which caused serious injury to its elderly victim (see, People v Parson, 209 AD2d 882 , 884, lv denied 84 NY2d 1014 ).

Turning to defendant’s argument on his appeal from the denial of his CPL 440.10 motion, we find no merit to defendant’s

Mikoll, J. P., Yesawich Jr., Peters and Mugglin, JJ., concur. Ordered that the judgment and order are affirmed.