People v. Hester

• Decision Date: 19 November 2014
• Docket Number: 2013-02413
• Parties: The PEOPLE, etc., respondent, v. Eugene HESTER, appellant.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 880
996 N.Y.S.2d 353
2014 N.Y. Slip Op. 08046

The PEOPLE, etc., respondent
v.
Eugene HESTER, appellant.

2013-02413

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

Nov. 19, 2014.

996 N.Y.S.2d 354

Steven A. Feldman, Uniondale, N.Y., for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, and Claibourne Henry of counsel), for respondent.

RANDALL T. ENG, P.J., MARK C. DILLON, COLLEEN D. DUFFY, and BETSY BARROS, JJ.

Opinion

122 A.D.3d 880

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.), rendered February 14, 2013, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court did not improvidently exercise its discretion in denying the defendant's request for an adverse inference charge as a sanction for the People's failure to produce an imitation gun at trial. The People showed that the imitation gun was stored at the property clerk's Erie Basin facility in Red Hook, Brooklyn, and could not be produced at trial because of the flooding and subsequent contamination of the facility caused by Hurricane Sandy. Further, although the imitation gun was not available at trial, a photograph of it was admitted into evidence and the defendant's counsel had ample opportunity to cross-examine the People's witnesses as to the appearance of the imitation gun and the photograph. Additionally, defense counsel explored the unavailability of the gun both during cross-examination and summation. Since the People did not act in bad faith and the defendant was not prejudiced by the People's failure to produce the gun at trial, the court did not improvidently

122 A.D.3d 881

exercise its discretion in declining to give an adverse...