People v. Polk

Appellate Division of the Supreme Court of New York

People v. Polk

247 A.D.2d 342, 669 N.Y.S.2d 217, 1998 N.Y. App. Div. LEXIS 1841

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

DecidedFebruary 26, 1998

StatusPublished

Cited by1 cases

This text of 247 A.D.2d 342 (People v. Polk) 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. Polk, 247 A.D.2d 342, 669 N.Y.S.2d 217, 1998 N.Y. App. Div. LEXIS 1841 (N.Y. Ct. App. 1998).

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Opinion

Judgment, Supreme Court, New York County (Budd Goodman, J.), rendered May 25, 1995, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 15 years of life, and judgment, same court and Justice, rendered October 12, 1995, convicting defendant, upon his plea of guilty, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a concurrent term of 8 years to life, unanimously affirmed.

Our review of the record establishes that there was no Rosario violation. The personal property release form prepared by a testifying police officer, which merely listed personal property returned to defendant, did not constitute a prior statement of the witness (People v Rosario, 9 NY2d 286, 289, cert denied 368 US 866; see also, People v Walker, 220 AD2d 214, lv denied 87 NY2d 909). In any event, a fair reading of the record indicates that attempts were made to locate the form, that the form was lost, and that its loss was not attributable to lack of due diligence by the prosecution. Further, defendant suffered no discernible prejudice from the loss of the form, particularly in light of defendant’s vigorous arguments in summation regarding the significance of the unproduced property form, as permitted by the court’s ruling. Thus, the court properly exercised its discretion in denying defendant’s application for an adverse inference charge (People v Hyde, 172 AD2d 305, lv denied 78 NY2d 1077).

Concur — Milonas, J. P., Williams, Mazzarelli and Andrias, JJ.

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Judgment, Supreme Court, New York County (Budd Goodman, J.), rendered May 25, 1995, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 15 years of life, and judgment, same court and Justice, rendered October 12, 1995, convicting defendant, upon his plea of guilty, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a concurrent term of 8 years to life, unanimously affirmed.

Our review of the record establishes that there was no Rosario violation. The personal property release form prepared by a testifying police officer, which merely listed personal property returned to defendant, did not constitute a prior statement of the witness (People v Rosario, 9 NY2d 286, 289, cert denied 368 US 866; see also, People v Walker, 220 AD2d 214, lv denied 87 NY2d 909). In any event, a fair reading of the record indicates that attempts were made to locate the form, that the form was lost, and that its loss was not attributable to lack of due diligence by the prosecution. Further, defendant suffered no discernible prejudice from the loss of the form, particularly in light of defendant’s vigorous arguments in summation regarding the significance of the unproduced property form, as permitted by the court’s ruling. Thus, the court properly exercised its discretion in denying defendant’s application for an adverse inference charge (People v Hyde, 172 AD2d 305, lv denied 78 NY2d 1077).

Concur — Milonas, J. P., Williams, Mazzarelli and Andrias, JJ.

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Bluebook (online)

247 A.D.2d 342, 669 N.Y.S.2d 217, 1998 N.Y. App. Div. LEXIS 1841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-polk-nyappdiv-1998.

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