BRYANT, KEITH, PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    863
    KA 10-01429
    PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    KEITH BRYANT, DEFENDANT-APPELLANT.
    (APPEAL NO. 1.)
    CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (Robert B.
    Wiggins, A.J.), rendered May 3, 2010. The judgment convicted
    defendant, upon a jury verdict, of burglary in the third degree, petit
    larceny and criminal mischief in the third degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: In appeal No. 1, defendant appeals from a judgment
    convicting him following a jury trial of, inter alia, burglary in the
    third degree (Penal Law § 140.20). Contrary to defendant’s
    contention, the verdict is not against the weight of the evidence. An
    eyewitness testified that he observed a man fitting defendant’s
    general description leave a children’s clothing store after 9:00 p.m.
    through the broken front door, carrying several coats. Shortly
    thereafter, the police received a tip from an identified informant
    that a man was selling children’s coats at a “drug house”
    approximately one block from the store and, when the police arrived at
    that location, they found defendant in a room with several children’s
    coats with tags from the store. The store owner testified that she
    asked the police if she could speak to the suspect seated in the
    patrol car and, when she did so, the person apologized to her. Thus,
    viewing the evidence in light of the elements of the crime as charged
    to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
    that a different verdict would have been unreasonable and thus that
    the verdict is not against the weight of the evidence (see generally
    People v Bleakley, 69 NY2d 490, 495).
    Contrary to defendant’s further contention, County Court properly
    refused to suppress the statement defendant made to the owner of the
    store based on the People’s failure to provide a CPL 710.30 notice
    -2-                           863
    KA 10-01429
    with respect to that statement. The store owner was not acting as an
    agent of the police and therefore no notice pursuant to CPL 710.30 was
    required (see People v Jones, 292 AD2d 792, 792, lv denied 98 NY2d
    652; see generally People v Ray, 65 NY2d 282, 286). The court also
    properly denied defendant’s motion to set aside the verdict pursuant
    to CPL 330.30 on the ground that the court erred in admitting that
    statement. “It is well settled that ‘[t]he basis for vacating a jury
    verdict prior to sentencing is strictly circumscribed by CPL 330.30 to
    allow vacatur only if reversal would have been mandated on appeal as a
    matter of law’ ” (People v Shelton, 111 AD3d 1334, 1334, lv denied 23
    NY3d 1025), and that is not the case here.
    Although the People correctly concede that the police were
    required to retain the stolen coats until they had given notice to
    defendant that the coats were being returned to the store owner and
    had afforded him an opportunity to examine, test or photograph them
    (see Penal Law § 450.10 [1], [2]), we reject defendant’s contention
    that the court abused its discretion in refusing to dismiss the
    indictment or preclude any evidence regarding the coats. It is well
    established that the determination of a sanction for a violation of
    section 450.10 is left to the sound discretion of the court (see
    People v Riley, 19 NY3d 944, 946, adhered to on rearg 20 NY3d 980;
    People v Kelly, 62 NY2d 516, 520-521), and that those sanctions are
    not to be used “if less severe measures can rectify the harm done” by
    the failure of the police to retain the evidence (Kelly, 62 NY2d at
    521; see People v Jenkins, 98 NY2d 280, 284). Inasmuch as the court
    determined that there was no bad faith on the part of the police in
    returning the coats to the store owner and defense counsel argued that
    there was no forensic evidence connecting defendant to the crime, the
    court’s determination to instruct the jury to infer that there was no
    fingerprint or DNA evidence on the coats or the hangers was
    appropriate (see People v Perkins, 56 AD3d 944, 945-946, lv denied 12
    NY3d 786; see generally People v McCall, 289 AD2d 1074, 1074, lv
    denied 97 NY2d 757). Defendant’s contention that there may have been
    evidence that exonerated him is entirely speculative. The store owner
    testified that she did not observe any blood on the coats, and an
    evidence technician testified that fingerprints could not be obtained
    from fabric and that it was unlikely that a clear print could be
    obtained from the hangers based upon their shape and the number of
    people who would have handled them.
    Even assuming, arguendo, that the court erred in admitting in
    evidence a security video of poor quality that depicted a man walking
    near the store, we conclude that any error is harmless. The evidence
    of defendant’s guilt is overwhelming, and there is no reasonable
    probability that defendant would have been acquitted if that evidence
    was not admitted (see generally People v Crimmins, 36 NY2d 230, 241-
    242). Defendant failed to preserve for our review his contention that
    the court erred in permitting a police investigator to testify with
    respect to the contents of the video (see CPL 470.05 [2]), and we
    decline to exercise our power to review the contention as a matter of
    discretion in the interest of justice (see CPL 470.15 [6] [a]).
    Finally, as defendant correctly concedes, reversal of the
    -3-                           863
    KA 10-01429
    judgment in appeal No. 2, convicting him upon his plea of guilty of
    grand larceny in the fourth degree (Penal Law § 155.30 [1]), is
    warranted only in the event that the judgment in appeal No. 1 is
    reversed (see People v Monroe, 39 AD3d 1276, 1277, lv denied 9 NY3d
    867; see generally People v Pichardo, 1 NY3d 126, 129), and here we
    are affirming the judgment in appeal No. 1.
    Entered:   November 10, 2016                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 10-01429

Filed Date: 11/10/2016

Precedential Status: Precedential

Modified Date: 11/11/2016