People v. Butler

• Decision Date: 10 June 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernard J. BUTLER, also known as Bernard Faulks, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1610
33 N.Y.S.3d 602
2016 N.Y. Slip Op. 04512

The PEOPLE of the State of New York, Respondent,
v.
Bernard J. BUTLER, also known as Bernard Faulks, Defendant–Appellant.

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

June 10, 2016.

33 N.Y.S.3d 603

Bridget L. Field, Rochester, for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

140 A.D.3d 1610

Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ; [3] ) and one count of assault

33 N.Y.S.3d 604

in the second degree (§ 120.05[2] ). Defendant's conviction stems from his conduct in shooting the victim, striking him in the buttocks. Defendant contends that the evidence is legally insufficient to establish that he was the shooter, that the weapon was operable, and that the victim sustained a physical injury. We reject those contentions. Two eyewitnesses identified defendant as the shooter and described the gun. Two cartridge cases were found at the scene, and the People's expert testified that they came from one firearm. That evidence is sufficient to establish defendant's identity and the operability of the firearm (see

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People v. Ciola, 136 A.D.2d 557, 557, 523 N.Y.S.2d 553, lv. denied 71 N.Y.2d 893, 527 N.Y.S.2d 1003, 523 N.E.2d 310 ). Although there were minor inconsistencies in the testimony of the eyewitnesses, those inconsistencies do not render their testimony incredible as a matter of law (see People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448, lv. denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444 ). The People further established, through the testimony of the People's witnesses and the victim's medical records, that the victim sustained a physical injury inasmuch as he experienced “substantial pain” from the gunshot (People v. West, 129 A.D.3d 1629, 1631, 12 N.Y.S.3d 455, lv. denied 26 N.Y.3d 972, 18 N.Y.S.3d 609, 40 N.E.3d 587 ; see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ). 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 reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

We reject defendant's contention that the photo arrays were unduly suggestive and thus that Supreme Court erred in refusing to suppress the identification testimony (see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 ). All of the men in the photo arrays were of similar complexion, had similar haircuts and facial hair, and had a teardrop tattoo underneath the left eye, which was either computer-generated or drawn in ink. The fact that defendant was the only one wearing a hooded sweatshirt is of no moment considering that each man was wearing unique clothing. While the background of defendant's photograph was darker than that of the other photographs, we conclude that “[t]he composition and presentation of the photo array[s] were such that there was no reasonable possibility that the attention of the witness[es] would be drawn to defendant as the suspect chosen by the police” (People v. Sylvester, 32 A.D.3d 1226, 1227, 821 N.Y.S.2d 345, lv. denied 7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000 ; see People v. Boria, 279 A.D.2d 585, 586, 719 N.Y.S.2d 682, lv. denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214 ; People v. Floyd, 173 A.D.2d 211, 212, 569 N.Y.S.2d 92, lv. denied 78 N.Y.2d 966, 574 N.Y.S.2d 945, 580 N.E.2d 417 ).

Contrary to defendant's contention, the court did not err in denying his request for a missing witness charge with respect to two witnesses. Defendant failed to meet his initial burden of establishing that one witness would provide testimony favorable to the prosecution (see People v. Simon, 71 A.D.3d 1574, 1575, 897 N.Y.S.2d 578, lv. denied 15 N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229, reconsideration denied 15 N.Y.3d 856, 909 N.Y.S.2d 33, 935 N.E.2d 825 ; People v. Karas, 21 A.D.3d 1360, 1361, 801 N.Y.S.2d 217, lv.

33 N.Y.S.3d 605

denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484, reconsideration denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285 ; see generally People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 ), and the People established with respect

140 A.D.3d 1612

to the other witness that his testimony would be cumulative to the testimony of the other witnesses (see People v. Carr, 59 A.D.3d 945, 946, 872 N.Y.S.2d 626, affd. 14 N.Y.3d 808, 899 N.Y.S.2d 746, 926 N.E.2d 253 ; People v. Hawkins, 84 A.D.3d 1736, 1737, 922 N.Y.S.2d 835, lv. denied 17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804 ).

We agree with defendant that the court erred in refusing to give an adverse inference charge based on the People's failure to preserve surveillance tapes (see People v. Handy, 20 N.Y.3d 663, 669, 966 N.Y.S.2d 351, 988 N.E.2d 879 ). Defendant used reasonable diligence in requesting those tapes, which captured “evidence that [was] reasonably likely to be of material importance” (id. at 665, 966 N.Y.S.2d 351, 988 N.E.2d 879 ), i.e., a video in the area where the crime occurred, from cameras operated by the City of Rochester Police Department.

We respectfully disagree with our concurring colleague that the State's duty to preserve surveillance videos is not triggered until a request has been made by the defendant. The Court of Appeals in Handy did not make any such pronouncement, but rather held that “when a defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the defendant is entitled to an adverse inference charge” (id. ). By way of further guidance, and of particular relevance to this case, the Court stated that “the authorities in charge should, when something that will foreseeably lead to criminal prosecution occurs, take whatever steps are necessary to insure that the video will not be erased—whether by simply taking a tape or disc out of a machine, or by instructing a computer not to delete the material” (id. at 669, 966 N.Y.S.2d 351, 988 N.E.2d 879 ). To conclude that the duty to preserve is not triggered until a request is made by the defendant would only give an incentive to State agents to destroy the evidence before the defendant has a chance to request the tapes. Such a rule would also directly contravene the explicit policy underlying the Court's rationale in Handy, namely, to “give [ ] the State an incentive to avoid the destruction of evidence” and to “raise the consciousness of State employees on this subject” (id. ).

Although we conclude that the court erred in failing to give the requested adverse inference charge, we further conclude that the error is harmless (see People v. Bradley, 108 A.D.3d 1101, 1102, 968 N.Y.S.2d 797, lv. denied 22 N.Y.3d 1039, 981 N.Y.S.2d 372, 4 N.E.3d 384 ). The evidence of guilt is overwhelming, and there is no reasonable possibility that the absence of an adverse inference charge contributed to the conviction (see People v. Blake, 105 A.D.3d 431, 431, 963 N.Y.S.2d 33, affd. 24 N.Y.3d 78, 996 N.Y.S.2d 585, 21 N.E.3d 214 ; see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

140 A.D.3d 1613

Defendant failed to preserve for our review his contention that the court's Sandoval ruling constitutes an abuse of discretion (see People v. Tolliver, 93 A.D.3d 1150, 1151, 940 N.Y.S.2d 398, lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 ; People v. Jackson, 46 A.D.3d 1408, 1409, 847 N.Y.S.2d 800, lv. denied 10 N.Y.3d 841, 859 N.Y.S.2d 400, 889 N.E.2d 87 ). In any event, we reject that contention. “[T]he court's Sandoval

33 N.Y.S.3d 606

compromise, in which it limited questioning on defendant's prior convictions for [ ]related offenses to whether defendant had been convicted of a felony or misdemeanor on the appropriate date, ‘reflects a proper exercise of the court's discretion’ ” (People v. Stevens, 109 A.D.3d 1204, 1205, 971 N.Y.S.2d 637, lv. denied 23 N.Y.3d 1043, 993 N.Y.S.2d 256, 17 N.E.3d 511 ). Defendant also failed to preserve for our review his contention that the indictment was multiplicitous because it charged criminal possession of a weapon in the second degree in more than one count (see People v. Jefferson, 125 A.D.3d 1463, 1464, 3 N.Y.S.3d 547, lv. denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 ). In any event,...