PEOPLE v. OWENS (2007)

 Defendant appeals from a judgment convicting him, following a jury trial, of burglary in the second degree (Penal Law § 140.25 [2] ), criminal mischief in the fourth degree (§ 145.00[1] ) and petit larceny (§ 155.25).   We reject the contention of defendant that his right under the Sixth Amendment of the U.S. Constitution to a jury pool representing a fair cross section of the community was violated.  “Defendant's motion papers failed to set forth sufficient facts demonstrating a systematic exclusion of African-Americans from the jury pool” (People v. Cotton, 38 A.D.3d 1189, 831 N.Y.S.2d 806 [2007];  see People v. McFadden, 244 A.D.2d 887, 889, 665 N.Y.S.2d 985;  People v. Grant, 226 A.D.2d 1092, 1093, 642 N.Y.S.2d 110, lv. denied 89 N.Y.2d 864, 653 N.Y.S.2d 287, 675 N.E.2d 1240).   Defendant offered no evidence that the disproportionately lower percentage of African-Americans in the jury pool was attributable to some aspect of the process used in Monroe County to fill jury pools.

 We also reject the contentions of defendant that the police did not have reasonable suspicion to stop his vehicle and that he was arrested without probable cause when he was handcuffed and transported to the crime scene in a police vehicle.   The police had reasonable suspicion to stop and detain defendant for a showup identification “based on the totality of the circumstances, including a radio transmission providing a general description of the perpetrator[ ] of [the] crime ․ [,] the ․ proximity of the defendant to the site of the crime, the brief period of time between the crime and the discovery of the defendant near the location of the crime, and the [officer's] observation of the defendant, who matched the radio-transmitted description” (People v. Evans, 34 A.D.3d 1301, 1302, 825 N.Y.S.2d 617, lv. denied 8 N.Y.3d 845, 830 N.Y.S.2d 704, 862 N.E.2d 796;  see People v. Casillas, 289 A.D.2d 1063, 1063-1064, 736 N.Y.S.2d 207, lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358;  People v. Lynch, 285 A.D.2d 518, 728 N.Y.S.2d 489, lv. denied 96 N.Y.2d 940, 733 N.Y.S.2d 380, 759 N.E.2d 379, cert. denied 535 U.S. 1081, 122 S.Ct. 1968, 152 L.Ed.2d 1027).   Contrary to the contention of defendant, the conduct of the police in detaining and transporting him to the crime scene did not constitute a de facto arrest.   Rather, “the police diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant” (People v. Hicks, 68 N.Y.2d 234, 242, 508 N.Y.S.2d 163, 500 N.E.2d 861;  see People v. Wiley, 32 A.D.3d 1352, 1353-1354, 821 N.Y.S.2d 350, lv. denied 7 N.Y.3d 930, 827 N.Y.S.2d 698, 860 N.E.2d 1000).   Also contrary to the contention of defendant, the police conducted a valid inventory search of his vehicle (see People v. Johnson, 1 N.Y.3d 252, 256, 771 N.Y.S.2d 64, 803 N.E.2d 385).   The officers testified that they followed the Rochester Police Department's protocol for inventory searches by searching the entire vehicle before it was towed.   The inventory search was not rendered invalid because the officers failed to secure and catalogue every item found in the vehicle (see People v. Walker, 267 A.D.2d 994, 995, 701 N.Y.S.2d 555, lv. denied 94 N.Y.2d 953, 710 N.Y.S.2d 10, 731 N.E.2d 627).

 We agree with defendant that the People's case with respect to the burglary count depended entirely upon circumstantial evidence and that Supreme Court therefore should have given a circumstantial evidence charge (see People v. Rogers, 16 A.D.3d 1101, 790 N.Y.S.2d 914;  cf. People v. Roldan, 88 N.Y.2d 826, 827, 643 N.Y.S.2d 960, 666 N.E.2d 553).   We conclude, however, that the error is harmless.   The evidence of defendant's guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant but for the court's failure to charge the jury with respect to circumstantial evidence (see People v. Fulton, 28 A.D.3d 1180, 1181-1182, 813 N.Y.S.2d 839, lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 881, 853 N.E.2d 252).

 We also agree with defendant that the court erred in failing to sanction the People for a Rosario violation, i.e., the destruction of the fingerprint examiner's notes, at the persistent violent felony offender hearing.  “Where Rosario material is lost or destroyed, the court is required to impose an appropriate sanction that is designed to eliminate resulting prejudice to the defendant” (People v. Carracedo, 89 N.Y.2d 1059, 1062, 659 N.Y.S.2d 830, 681 N.E.2d 1276).   Here, the notes were the only written record of the 10 points of similarity between the various sets of fingerprints and were the only means by which defendant could effectively cross-examine the fingerprint examiner.   Defendant thus was prejudiced by the destruction of the notes, and the court erred in failing to impose any sanction (see People v. Wallace, 76 N.Y.2d 953, 955, 563 N.Y.S.2d 722, 565 N.E.2d 471;  People v. Holman, 283 A.D.2d 440, 441, 724 N.Y.S.2d 449, lv. denied 96 N.Y.2d 902, 730 N.Y.S.2d 800, 756 N.E.2d 88).   We therefore modify the judgment by vacating the sentence imposed for burglary in the second degree, and we remit the matter to Supreme Court for resentencing on count one of the indictment following a new persistent violent felony hearing (see generally Wallace, 76 N.Y.2d 953, 563 N.Y.S.2d 722, 565 N.E.2d 471;  People v. Gamble, 172 A.D.2d 687, 688, 568 N.Y.S.2d 644).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed for burglary in the second degree and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Monroe County, for resentencing on count one of the indictment.

MEMORANDUM: