Opinion
15729, 2177/12.
09-29-2015
The PEOPLE of the State of New York, Respondent, v. Andre JOHNSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, RENWICK, MANZANET–DANIELS, JJ.
Opinion Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered September 3, 2013, convicting defendant, after a jury trial, of assault in the second degree, attempted assault in the first degree and two counts of attempted assault in the second degree, and sentencing him to an aggregate term of 7 years, unanimously modified, on the law, to the extent of vacating the conviction of attempted second-degree assault under the first count of the indictment and dismissing that count, and otherwise affirmed.
The court properly declined to give an adverse inference charge as to part of the surveillance video footage taken more than five minutes before the beginning of the subject incident, which occurred in a hotel. A police detective testified that the hotel staff cued the videotape to the beginning of the incident for him, but he rewound the tape to about 10 or more minutes earlier, started watching from that point, and found no footage of the two victims or defendant until about 5 minutes before the incident began. Consequently, the police obtained a copy of the video beginning at that point, and a defense investigator who subsequently sought an earlier portion of the video was informed by hotel personnel that it no longer existed. The police had no affirmative duty to seek potentially exculpatory evidence earlier in the video (see People v. Hayes, 17 N.Y.3d 46, 51, 926 N.Y.S.2d 382, 950 N.E.2d 118 [2011], cert. denied – –– U.S. ––––, 132 S.Ct. 844, 181 L.Ed.2d 553 [2011] ), and the evidence was not destroyed by anyone in law enforcement. Moreover, any error was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ), particularly since the portion of the video at issue would not have supported a justification defense even if it had been consistent with defendant's account (see Penal Law § 35.15[2] [a] ). It should also be noted that the court gave advance permission for the defense to cross-examine the detective on this matter, and to argue in summation that the police should have preserved the video.
Defendant's contention that the court should have given an adverse inference charge as to other evidence is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find it unavailing (see People v. Plummer, 95 A.D.3d 647, 944 N.Y.S.2d 134 [1st Dept.2012], lv. denied 19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] ).
Defendant was not deprived of a fair trial by the prosecutor's argument in summation that the two victims had been candid in admitting to their drug histories and criminal records. This argument was properly responsive to the defense summation, which attacked the victims' credibility based on their past (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept.1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ). Contrary to defendant's argument, the prosecutor's comments did not run afoul of the trial court's Sandoval ruling, which permitted the People to elicit the number and dates of defendant's felony and misdemeanor convictions, but precluded the People from asking defendant about the specific offenses or underlying facts. The prosecutor's summation did not refer to defendant's criminal history, even implicitly. Defendant's remaining challenges to the prosecutor's summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001 [1st Dept.1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ). Moreover, any error regarding the prosecutor's summation was harmless in light of the overwhelming evidence of defendant's guilt (see Crimmins, supra; see also D'Alessandro, 184 A.D.2d at 120, 591 N.Y.S.2d 1001 ).
To the extent the record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
As the People concede, one of the attempted second-degree assault counts must be dismissed as an inclusory concurrent count of the attempted first-degree assault count.