People v. James

289 A.D.2d 3, 734 N.Y.S.2d 16, 2001 N.Y. App. Div. LEXIS 11603

Opinion

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered November 4, 1999, convicting defendant, after a jury trial, of attempted robbery in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 18 years to life, unanimously affirmed.

The court properly exercised its discretion in determining that an adverse inference charge was the appropriate sanction for the People’s inadvertent loss of a video surveillance tape, a 911 tape and one of four evidence bags containing clothing (see, People v Martinez, 71 NY2d 937, 940; People v Kelly, 62 NY2d 516, 520-521). There was no indication of bad faith, and no reason to believe that any of this evidence was exculpatory or helpful to defendant. Moreover, there was a stipulation concerning the results of the codefendant’s counsel’s viewing of the videotape prior to its loss, and this stipulation permitted defendant to take advantage of whatever value the tape may have had in impeaching a prosecution witness.

The challenged portions of the People’s summation did not deprive defendant of a fair trial. The record establishes that defendant’s summation included attacks on police credibility to which the People were entitled to respond (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976), and that there was no attempt to lessen the People’s burden of proof, but rather an argument that the People had more than met their burden by presenting overwhelming evidence of defendant’s guilt. The court’s curative instructions prevented any of the challenged remarks from causing any prejudice. In any event, were we to find any error, we would find it to be harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. Concur — Sullivan, P. J., Williams, Ellerin, Lerner and Saxe, JJ.