People v. Blackburn

214 A.D.2d 943, 626 N.Y.S.2d 604, 1995 N.Y. App. Div. LEXIS 6675

Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of robbery in the first degree and petit larceny arising out of an incident in which he threatened store employees with a knife in order to escape apprehension for shoplifting. Defendant was sentenced as a second felony offender to a term of imprisonment of 8 to 16 years. We conclude that the photographic and lineup identification procedures were not unnecessarily suggestive. Further, we conclude that County Court did not abuse its discretion in refusing to strike the Wade testimony of the officer as a sanction for destruction of his notes. The officer did not fail to exercise due care in routinely destroying his notes after incorporating the information into his official report (see, People v Wallace, 76 NY2d 953, 955; People v Martinez, 71 NY2d 937, 940; People v Hyde, 172 AD2d 305, 306, lv denied 78 NY2d 1077). The notes were the duplicative equivalent of the report, which was turned over to the defense (see, People v Banch, 80 NY2d 610, 616-617; People v Consolazio, 40 NY2d 446, 454, cert denied 433 US 914). Finally, we conclude that defendant’s sentence is not harsh or excessive. (Appeal from Judgment of Monroe County Court, Connell, J.—Robbery, 1st Degree.) Present—Denman, P. J., Lawton, Wesley, Doerr and Boehm, JJ.