PEOPLE v. BROWN

Reset A A Font size: Print

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

The PEOPLE, etc., respondent, v. Joe BROWN, appellant.

Decided: October 30, 2000

GABRIEL M. KRAUSMAN, J.P., ANITA R. FLORIO, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ. Lynn W.L. Fahey, New York, N.Y. (Debra E. Baker of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Solomon Neubort of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silverman, J.), rendered February 19, 1999, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of burglary in the third degree beyond a reasonable doubt (see, Penal Law § 140.20;  People v. Barnes, 50 N.Y.2d 375, 429 N.Y.S.2d 178, 406 N.E.2d 1071;  People v. Mazer, 208 A.D.2d 956, 617 N.Y.S.2d 892;  People v. Gilmore, 199 A.D.2d 410, 605 N.Y.S.2d 109).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).   Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).

 Furthermore, the trial court properly gave an adverse inference charge instead of striking a police officer's testimony where the prosecution was unable to produce the defendant's arrest pedigree report (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64;  People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134;  People v. Fullwood, 254 A.D.2d 431, 678 N.Y.S.2d 904).   Any possibility that the defendant was prejudiced by the loss or destruction of his arrest pedigree report was remote and minimized by the defense counsel's cross-examination of the arresting police officer (see, People v. Maddix, 244 A.D.2d 432, 664 N.Y.S.2d 80;  People v. Campbell, 176 A.D.2d 814, 575 N.Y.S.2d 138) concerning the arrest pedigree report (see, People v. Martinez, supra;  People v. Haupt, 71 N.Y.2d 929, 528 N.Y.S.2d 808, 524 N.E.2d 129).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

Copied to clipboard