PEOPLE v. CAMPBELL

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Tony CAMPBELL, Defendant-Appellant.

Decided: May 20, 2004

BUCKLEY, P.J., ANDRIAS, SAXE, LERNER, FRIEDMAN, JJ. Noah Lipman, New York, for appellant. Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), for respondent.

Amended judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered May 17, 2002, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the second degree, criminal possession of a weapon in the third degree and two counts of criminal use of drug paraphernalia in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 6 years to life, unanimously affirmed.

 The court properly denied defendant's suppression motion.   The visit to defendant's apartment by his parole officer was reasonably related to the parole officer's official duties, and the search was permissible based on defendant's written consent (see People v. Hale, 93 N.Y.2d 454, 692 N.Y.S.2d 649, 714 N.E.2d 861;  People v. Lopez, 288 A.D.2d 70, 733 N.Y.S.2d 154, lv. denied 97 N.Y.2d 706, 739 N.Y.S.2d 107, 765 N.E.2d 310).

 The court properly exercised its discretion in admitting evidence of defendant's parole status to complete the narrative of events leading up to his arrest (see People v. Mims, 305 A.D.2d 226, 758 N.Y.S.2d 491, lv. denied 100 N.Y.2d 623, 767 N.Y.S.2d 406, 799 N.E.2d 629;  People v. Chestnut, 254 A.D.2d 525, 526, 678 N.Y.S.2d 694, lv. denied 93 N.Y.2d 871, 689 N.Y.S.2d 433, 711 N.E.2d 647).   Although defendant offered to concede certain potential issues, many aspects of the recovery of drugs from defendant's apartment would still have been incomprehensible to the jury absent an explanation of the relevant context.   The probative value of this evidence outweighed its prejudicial effect, which was minimized by the court's suitable limiting instruction.

 The court properly denied defendant's request for an adverse inference instruction regarding missing police documents, since the documents in question either did not qualify as Rosario material (see People v. Sims, 282 A.D.2d 204, 723 N.Y.S.2d 21, lv. denied 96 N.Y.2d 835, 729 N.Y.S.2d 456, 754 N.E.2d 216;  People v. Williams, 273 A.D.2d 79, 80, 709 N.Y.S.2d 72, lv. denied 95 N.Y.2d 940, 721 N.Y.S.2d 616, 744 N.E.2d 152), or were not established to have ever existed (see People v. Cortijo, 254 A.D.2d 125, 126, 680 N.Y.S.2d 208, lv. denied 92 N.Y.2d 1030, 684 N.Y.S.2d 495, 707 N.E.2d 450).   Furthermore, defendant failed to establish that he was prejudiced (see People v. Cooper, 292 A.D.2d 163, 738 N.Y.S.2d 197, lv. denied 98 N.Y.2d 674, 746 N.Y.S.2d 463, 774 N.E.2d 228).

 Defendant waived any objection to testimony about an anonymous tip, since he introduced this evidence himself.   Defendant's strategic decision to introduce this evidence was not the product of any adverse ruling by the court.