Opinion
8181 Ind. 3304/10
01-22-2019
The PEOPLE of the State of New York, Respondent, v. Modechai KOBBAH, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Paul Wiener of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Julia Chariott of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Julia Chariott of counsel), for respondent.
Sweeny, J.P., Richter, Tom, Kern, Singh, JJ.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered March 18, 2013, convicting defendant, after a jury trial, of attempted assault in the third degree, and sentencing him to a term of 90 days, unanimously affirmed.
Defense counsel failed to provide details to support the claim that the police may have rendered defendant's own lineup suggestive by using the same set of fillers that had been used in the uncharged suspect's lineup the day before. Accordingly, the court providently exercised its discretion in denying disclosure of the lineup photo and related relief.
Although the court erred in failing to give the jury a limiting instruction that the victim's mother's testimony recounting her son's description of her assailant was not admitted for the truth, the error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
The court providently exercised its discretion in denying defendant's request for an adverse inference instruction regarding an inadvertently destroyed 911 tape. Defendant was not prejudiced, because the Sprint report afforded him sufficient opportunity for impeachment (see People v. Brown, 92 A.D.3d 455, 456, 937 N.Y.S.2d 230 [1st Dept. 2012]lv denied 18 N.Y.3d 955, 944 N.Y.S.2d 484, 967 N.E.2d 709 [2012] ).