People v. Russillo

286 A.D.2d 992, 730 N.Y.S.2d 912, 2001 N.Y. App. Div. LEXIS 9165

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2001
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of robbery in the first degree (Penal Law § 160.15 [4]) and criminal use of a firearm in the first degree (Penal Law § 265.09 [1]). We reject the contention of defendant that a courtroom demonstration allowing the jury to view his eyes was unduly prejudicial (see, People v Brown, 133 AD2d 464, 465, lv denied 70 NY2d 930; see also, People v Caffee, 247 AD2d 401, 401-402, lv denied 91 NY2d 971). The victim indicated that the perpetrator of the robbery had a “lazy” eye. Defendant’s contention that County Court erred in receiving in evidence at the Wade hearing a photocopy of a photographic array also lacks merit. “The People sufficiently established that the original [array] was missing, that a diligent search was made to recover the [missing array], and that the copy was a duplicate of the original” (People v Perez, 276 AD2d 722, lv denied 96 NY2d 762). Defendant further contends that the court improperly marshaled the evidence. Defendant failed to object to the court’s curative instruction to the jury on that issue, however, and thus failed to preserve his present contention for our review (see generally, People v Hines, 227 AD2d 887, lv denied 88 NY2d 986). Finally, defendant failed to preserve for our review his contention that the court improperly received in evidence a videotape that the People allegedly had failed to provide to defendant in a timely manner (see, CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Erie County Court, Drury, J. — Robbery, 1st Degree.) Present — Wisner, J. P., Hurlbutt, Scudder, Kehoe and Burns, JJ.