PEOPLE v. MEDINA (2004)

Judgments, Supreme Court, New York County (Budd G. Goodman, J. at suppression hearing;  Rosalyn Richter, J. at jury trial and sentence), rendered August 19, 2002, convicting defendants of criminal sale of a controlled substance in the third degree, and sentencing each defendant, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

The verdicts were not against the weight of the evidence.   Issues of credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis for disturbing its determinations (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).

 The suppression court properly denied defendant Davila's request for permission to call the observing officer to testify at the hearing, because the evidence at the hearing did not raise any substantial issue as to the legality of his arrest (see People v. Chipp, 75 N.Y.2d 327, 337-338, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;   People v. Petralia, 62 N.Y.2d 47, 476 N.Y.S.2d 56, 464 N.E.2d 424, cert. denied 469 U.S. 852, 105 S.Ct. 174, 83 L.Ed.2d 109;  People v. Setteroth, 200 A.D.2d 533, 607 N.Y.S.2d 15, lv. denied 83 N.Y.2d 876, 613 N.Y.S.2d 137, 635 N.E.2d 306).   There was nothing in the arresting officer's hearing testimony that suggested that the observing officer's radio transmission failed to provide probable cause for the arrest.

 The trial court properly permitted the People to elicit a prior consistent statement made by the observing officer since defendants, using the officer's testimony given at a prior trial at which the jury was unable to agree on a verdict, had implied that aspects of the officer's testimony at the instant trial were recent fabrications intended to strengthen the People's case (see People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611 N.E.2d 265).   Furthermore, the prior consistent statement predated the particular motive to falsify asserted by the defense (see People v. McClean, 69 N.Y.2d 426, 430, 515 N.Y.S.2d 428, 508 N.E.2d 140;  People v. Baker, 23 N.Y.2d 307, 323-323, 296 N.Y.S.2d 745, 244 N.E.2d 232).

 The court properly exercised its discretion in imposing an adverse inference instruction, but no further sanction, for the People's loss of photos and map layovers that had been used for explanatory purposes at the first trial, since the prejudice to defendants was minimal (see People v. Haupt, 71 N.Y.2d 929, 528 N.Y.S.2d 808, 524 N.E.2d 129;  People v. Williams, 223 A.D.2d 491, 637 N.Y.S.2d 379, lv. denied 87 N.Y.2d 1026, 644 N.Y.S.2d 160, 666 N.E.2d 1074, cert. denied 519 U.S. 952, 117 S.Ct. 367, 136 L.Ed.2d 257).