THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAYSHAWN HANDY DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05[7] ), defendant contends that County Court erred in denying his request for an adverse inference charge concerning the failure of the People to preserve an alleged videotape of the assault.   Contrary to defendant's contention, an adverse inference charge was not warranted inasmuch as defendant failed to establish that the alleged videotape was discoverable evidence that the People were required to preserve (see People v. James, 93 N.Y.2d 620, 644;  People v. Kelly, 62 N.Y.2d 516, 520).   There is no support in the record for defendant's assertion that the alleged videotape was exculpatory and thus his contention that the alleged videotape was Brady material is merely speculative (see People v. Ross, 282 A.D.2d 929, 931, lv denied 96 N.Y.2d 907;  People v. Scattareggia, 152 A.D.2d 679, 679–680).

Contrary to defendant's further contention, the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621), is legally sufficient to establish that defendant intended to cause injury to another person (see Penal Law § 120.05[7];  People v. Cooper, 50 AD3d 1570, lv denied 10 NY3d 957;  People v. Amin, 294 A.D.2d 863, lv denied 98 N.Y.2d 672, 674;  see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Further, viewing the evidence in light of the elements of the crime of assault in the second degree as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court