PEOPLE v. VON FRANKLIN (2021)

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial, defendant was convicted of harassment in the second degree (Penal Law § 240.26 [1]). The evidence adduced at trial showed that, in January 2017, defendant was a passenger on a bus when special inspectors for the New York City Transit Authority, a division of the Metropolitan Transit Authority, entered the bus and asked the passengers to display their fare receipts. Defendant refused to display his receipt after he was repeatedly asked to do so by Special Inspector Hills. After another special inspector asked defendant to display his receipt, defendant's left forearm hit Hills in his face as defendant moved his arm to shove the receipt in the other inspector's face.

Insofar as is relevant to this appeal, prior to trial, in May 2017, defendant had informed the court that the bus should have had a videotape of the incident. Neither defense counsel nor the prosecutor was aware of any videotape, and defense counsel did not seek to subpoena the tape until September 2017, a week before the trial. On appeal, defendant's sole contention is that the Criminal Court should have granted his trial attorney's request for an adverse inference charge because it was reasonably likely that the tape had the potential to be both relevant and exculpatory.

“[U]nder the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State” (People v Handy, 20 NY3d 663, 669 [2013]). A review of the record on appeal indicates that the Criminal Court properly denied defendant's trial attorney's request for an adverse inference charge, since it was not shown (1) that defendant's trial attorney used “reasonable diligence” to obtain the requested surveillance tape since, in May 2017, the court had instructed the attorney to subpoena the tape which she did not do until September 2017, one week before the trial, (2) that the tape was reasonably likely to be material, and that (3) that any tape actually existed and was destroyed by the People or their agent.

Accordingly, the judgment of conviction is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.