Opinion
10-05-2016
The PEOPLE, etc., respondent, v. Angel ROBINSON, appellant.
Laurette Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Alfred J. Croce of counsel), for respondent.
Laurette Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Alfred J. Croce of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.
Appeals by the defendant from two judgments of the Supreme Court, Suffolk County (Cohen, J.), both rendered October 24, 2014, convicting him of stalking in the fourth degree, criminal contempt in the second degree (four counts), and violations of Vehicle and Traffic Law §§ 509(1), 306(b), 319(1), 401(1)(a), and 402(1) under Indictment No. 1227/14, and criminal contempt in the second degree under Indictment No. 2735/13, upon jury verdicts, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant was charged in two indictments which were consolidated for trial. The indictments accused the defendant of committing a number of offenses against the complainant, with whom he had a prior romantic relationship, and with vehicle and traffic offenses relating thereto. The complainant alleged that the defendant violated orders of protection over the course of several years and engaged in threatening behavior. The defendant was convicted, upon jury verdicts, of five counts of criminal contempt in the second degree, stalking in the fourth degree, and five violations of the Vehicle and Traffic Law.
Contrary to the defendant's contention, he was not entitled to the imposition of a sanction against the prosecution for its failure to preserve a video segment purporting to show certain incidents in progress, which was contained in a video surveillance system owned by a school district and was automatically overwritten by the surveillance system 30 days later. The lost video segment was never in the possession of the police or prosecution, and thus, the prosecution did not have an affirmative obligation to preserve the evidence. Moreover, there was no evidence that the failure to preserve the video was the result of bad faith, and the defendant failed to establish any prejudice from its loss. Accordingly, the Supreme Court did not improvidently deny the defendant's request for an adverse inference charge relating to the absence of the surveillance video (see People v. Charlton, 69 A.D.3d 647, 893 N.Y.S.2d 167 ; see also People v. James, 93 N.Y.2d 620, 644, 695 N.Y.S.2d 715, 717 N.E.2d 1052 ; People v. Hearns, 33 A.D.3d 722, 664, 821 N.Y.S.2d 907 ; People v. Jones, 49 Misc.3d 133[A], 2015 N.Y. Slip Op. 51457 [U], 2015 WL 5778776 [Appellate Term 2d Dept., 11th & 15th Jud. Dist.]; cf. People v. Handy, 20 N.Y.3d 663, 966 N.Y.S.2d 351, 988 N.E.2d 879 ).
“Where a defendant assents at trial to a court's decision, agrees with the court's determination, or requests that the court take the actions the court ultimately took, the defendant cannot, after the fact, claim the action constituted error” (People v. Armstrong, 138 A.D.3d 877, 879, 29 N.Y.S.3d 475 ). Here, as the defendant withdrew his request for a missing witness charge in favor of a stipulation, he waived any claim that the Supreme Court committed error in failing to provide such a charge (see People v. Armstrong, 138 A.D.3d at 879, 29 N.Y.S.3d 475 ; People v. Ramos, 127 A.D.3d 996, 997, 6 N.Y.S.3d 651 ).
The Constitution guarantees a criminal defendant a meaningful opportunity to present a complete defense (see People v. Powell, 27 N.Y.3d 523, 529–530, 35 N.Y.S.3d 675, 55 N.E.3d 435 ; People v. DiPippo, 27 N.Y.3d 127, 135, 31 N.Y.S.3d 421, 50 N.E.3d 888 ). However, rules of evidence permit trial judges to exclude evidence where its probative value is outweighed by other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury (see People v. DiPippo, 27 N.Y.3d at 135–136, 31 N.Y.S.3d 421, 50 N.E.3d 888 ). Moreover, while all relevant evidence is admissible unless its admission violates some exclusionary rule, evidence is relevant only if it tends to prove the existence or nonexistence of a material fact directly at issue in the case (see People v. Jin Cheng Lin, 26 N.Y.3d 701, 727, 27 N.Y.S.3d 439, 47 N.E.3d 718 ). Here, the Supreme Court providently exercised its discretion in excluding the testimony of a automobile mechanic whose proffered testimony was not relevant to any issue in the case (see People v. Pike, 131 A.D.2d 890, 891, 517 N.Y.S.2d 246 ).
The defendant's contention that his convictions were not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05 [2 ]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of the crimes for which he was convicted 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, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we find that the verdicts of guilt were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).