People v. Apergis

Appellate Division of the Supreme Court of New York

People v. Apergis

200 A.D.2d 388, 608 N.Y.S.2d 77, 1994 N.Y. App. Div. LEXIS 78

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 6, 1994

StatusPublished

Cited by4 cases

This text of 200 A.D.2d 388 (People v. Apergis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Apergis, 200 A.D.2d 388, 608 N.Y.S.2d 77, 1994 N.Y. App. Div. LEXIS 78 (N.Y. Ct. App. 1994).

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Opinion

—Judgment, Su[389]*389preme Court, New York County (Franklin Weissberg, J.) rendered March 23, 1993, convicting defendant after jury trial, of five counts of criminal usury in the first degree, for which defendant was sentenced to 5 concurrent terms of 1 to 3 years, unanimously affirmed. The case is remitted to the Supreme Court, New York County for further proceedings pursuant to CPL 460.50 (5).

The complainant’s testimony, as well as tape recorded conversations, established defendant’s guilt of usury in the first degree. (People v Lombardo, 61 NY2d 97; People v Valentzas, 70 NY2d 446.) The destruction of the original tapes by the police department, pursuant to routine procedure, was not the result of bad faith or lack of due diligence. Nor is there any credible indication that the copies of these tapes, which were introduced into evidence, were altered or in any manner tampered with. The tapes were audible for the most part, the complainant’s testimony established their accuracy, and, while defendant notes gaps, such a challenge goes to the weight of the evidence, rather than its admissibility. In submitting a permissive adverse inference instruction to the jury as an appropriate sanction for the destruction of the original tapes, the court did not abuse its discretion.

We have considered defendant’s remaining contentions and find them to be without merit. Concur — Sullivan, J. P., Carro, Rosenberger and Wallach, JJ.

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—Judgment, Su[389]*389preme Court, New York County (Franklin Weissberg, J.) rendered March 23, 1993, convicting defendant after jury trial, of five counts of criminal usury in the first degree, for which defendant was sentenced to 5 concurrent terms of 1 to 3 years, unanimously affirmed. The case is remitted to the Supreme Court, New York County for further proceedings pursuant to CPL 460.50 (5).

The complainant’s testimony, as well as tape recorded conversations, established defendant’s guilt of usury in the first degree. (People v Lombardo, 61 NY2d 97; People v Valentzas, 70 NY2d 446.) The destruction of the original tapes by the police department, pursuant to routine procedure, was not the result of bad faith or lack of due diligence. Nor is there any credible indication that the copies of these tapes, which were introduced into evidence, were altered or in any manner tampered with. The tapes were audible for the most part, the complainant’s testimony established their accuracy, and, while defendant notes gaps, such a challenge goes to the weight of the evidence, rather than its admissibility. In submitting a permissive adverse inference instruction to the jury as an appropriate sanction for the destruction of the original tapes, the court did not abuse its discretion.

We have considered defendant’s remaining contentions and find them to be without merit. Concur — Sullivan, J. P., Carro, Rosenberger and Wallach, JJ.

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Bluebook (online)

200 A.D.2d 388, 608 N.Y.S.2d 77, 1994 N.Y. App. Div. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-apergis-nyappdiv-1994.

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