People v. Burton

• Decision Date: 20 March 2015
• Docket Number: 122 KA 12-01731
• Citation: 126 A.D.3d 1324,2015 N.Y. Slip Op. 02249,5 N.Y.S.3d 750
• Parties: The PEOPLE of the State of New York, Respondent, v. Tramell BURTON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1324
5 N.Y.S.3d 750
2015 N.Y. Slip Op. 02249

The PEOPLE of the State of New York, Respondent
v.
Tramell BURTON, Defendant–Appellant.

122 KA 12-01731

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

March 20, 2015.

5 N.Y.S.3d 751

Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant.

Tramell Burton, Defendant–Appellant Pro Se.

William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, and DeJOSEPH, JJ.

Opinion

MEMORANDUM:

126 A.D.3d 1325

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of robbery in the first degree (Penal Law § 160.15[2], [4] ). The charges arose from defendant striking the victim on the head with a handgun, and defendant and codefendant taking several of the victim's possessions.

We reject defendant's contention that, because there is only circumstantial evidence supporting the fact that he was a perpetrator, the evidence is legally insufficient to support the conviction. Viewing the circumstantial evidence in the light most favorable to the People (see People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ), we conclude that there is a valid line of reasoning and permissible inferences that could lead a reasonable jury to conclude that defendant struck the victim on the head with a handgun, and took the victim's possessions (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that “the jury could properly have inferred that defendant was one of the perpetrators” (People v. Goree, 309 A.D.2d 1204, 1204, 764 N.Y.S.2d 760 ; see generally People v. Dukes, 160 A.D.2d 332, 332, 553 N.Y.S.2d 411, lv. denied 76 N.Y.2d 847, 560 N.Y.S.2d 132, 559 N.E.2d 1291 ; People v. Ngor Yip, 118 A.D.2d 472, 474, 499 N.Y.S.2d 752 ). Defendant was found in both spatial and temporal proximity to the crime scene, and in possession of the items stolen from the victim (see Goree, 309 A.D.2d at 1204, 764 N.Y.S.2d 760 ). We therefore conclude that the verdict is not against the weight

5 N.Y.S.3d 752

of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

We reject defendant's further contentions that the People deprived him of his right to present a defense by failing to secure a purported surveillance video from the bar outside of which the robbery occurred, and that County Court erred in denying his request for an adverse inference instruction with respect to that failure. We note that defendant failed to preserve for our review his contention that he was denied the right to present a defense because “[he] did not raise th[at] constitutional claim[ ] in the trial court” (People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 ; see People v. Norcutt, 115 A.D.3d 1306, 1309, 982 N.Y.S.2d 661, lv. denied 23 N.Y.3d 966, 988 N.Y.S.2d 573, 11 N.E.3d 723 ), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We conclude that the court properly denied defendant's

126 A.D.3d 1326

request for an adverse inference instruction with respect to the purported surveillance video. Although the People would have a duty to protect such a video from being destroyed if it were in their possession (see generally People v. Handy, 20 N.Y.3d 663, 668–669, 966 N.Y.S.2d 351, 988 N.E.2d 879 ), the record fails to establish that either the police or the People had possession of any such video (see generally People v. Nelson, 90 A.D.3d 954, 954, 935 N.Y.S.2d 133, lv. denied 18 N.Y.3d 996, 945 N.Y.S.2d 651, 968 N.E.2d 1007 ). Moreover, the People have no duty to seek...