The People, etc., respondent, v. Radames Acosta, appellant. (2010)

Argued-September 18, 2009

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered December 6, 2007, convicting him of robbery in the first degree, robbery in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree (two counts), unauthorized use of a vehicle in the third degree, and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.   The appeal brings up for review the denial (Roman, J.), without a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.   By decision and order of this Court dated October 13, 2009, the matter was remitted to the Supreme Court, Queens County, to hear and report on that branch of the defendant's omnibus motion which was to suppress physical evidence, and the appeal was held in abeyance in the interim (see People v. Acosta, 66 AD3d 792).   The Supreme Court, Queens County (Latella, J.), has now filed its report.

ORDERED that the judgment is affirmed.

The People “have an affirmative obligation to preserve all discoverable evidence within their possession” (People v. James, 93 N.Y.2d 620, 644;  see People v. Hernandez, 285 A.D.2d 559).   Here, when a surveillance videotape was destroyed, it had not been “gathered by the prosecution or its agent” (People v. Kelly, 62 N.Y.2d 516, 520;  see People v. James, 93 N.Y.2d at 644), and there is no indication that the People otherwise had the videotape “within their possession and control” (People v. O'Brien, 270 A.D.2d 433, 434).   Accordingly, the defendant was not entitled to an adverse inference charge regarding the videotape (see People v. Tutt, 305 A.D.2d 987).

That branch of the defendant's omnibus motion which was to suppress physical evidence was properly denied (see People v. Ruppert, 42 AD3d 817, 817-818;  People v. Green, 41 AD3d 162, 162-163).

MASTRO, J.P., BALKIN, DICKERSON and LOTT, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court