People v. La Mountain

• Decision Date: 02 April 1998
• Parties: , 1998 N.Y. Slip Op. 3027 The PEOPLE of the State of New York, Respondent, v. Ronald LA MOUNTAIN, Also Known as Veronica La Mountain, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 763

671 N.Y.S.2d 763

249 A.D.2d 584, 1998 N.Y. Slip Op. 3027

The PEOPLE of the State of New York, Respondent, v. Ronald LA MOUNTAIN, Also Known as Veronica La Mountain, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 2, 1998.

Paul Edwards, Albany, for appellant.

Sol Greenberg, District Attorney (John E. Maney, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, YESAWICH, SPAIN and CARPINELLO, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered January 5, 1996, upon a verdict convicting defendant of the crime of attempted burglary in the second degree.

On October 11, 1994 at approximately 9:45 A.M., defendant was arrested by police officers responding to a "911" call from William Collins, who reported that an intruder was peering into several windows of his home in the Town of Colonie, Albany County, and attempting to open one of them. Collins described the intruder as having long, stringy hair, an extremely pale complexion, dark glasses and denim clothing. Upon arriving at the Collins residence and entering its rear yard, the police officers observed defendant in an adjoining yard, peering into the windows of that home. They observed that he fit the description given by Collins and transmitted by the police dispatcher over the radio. The arresting officers also found a screwdriver on the ground below one of the windows, which Collins identified as not belonging to him, and defendant's car was parked in Collins' driveway. Immediately after he was taken into custody, the arresting officers presented defendant to Collins and his wife, who identified him as the individual they observed looking into their windows and attempting to open at least one of them.

Defendant was charged with and ultimately convicted of the crime of attempted burglary in the second degree. He was sentenced as a persistent felony offender to a prison term of 20 years to life.

Defendant raises five issues on this appeal: (1) the adequacy of the sanction imposed by County Court for the destruction of Rosario material in the form of the 911 call by William Collins, (2) admission of identification evidence in the wake of the showup identification by the Collinses, (3) County Court's Sandoval ruling, (4) the refusal by County Court to charge certain lesser included offenses, and (5) the severity of the sentence imposed.

For the reasons which follow, we find none of defendant's arguments availing. Accordingly we affirm the judgment of County Court.

Defendant's first claim of error concerns County Court's imposition of the mildest possible sanction for the Rosario violation, which consisted of the inadvertent destruction of the tape of Collins' 911 call to the Colonie Police. The taped conversation contained the description of the intruder conveyed by Collins to the police and certainly constituted Rosario material. The People were required to exercise due care to preserve the tape (see, People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498). The prosecutor indicated that although he had instructed the Colonie Police to preserve the tape, for reasons unknown to him it was not available at the time of trial. There was preserved, however, and available for defense counsel, a tape of the radio transmission by the Colonie Police dispatcher who relayed the information and description given to him by Collins. Defense counsel requested, as a sanction for destruction of the tape, that a mandatory adverse inference charge be given to the jury. County Court instead gave a permissive inference charge, despite noting that defense counsel had failed to lay any foundation for the charge.

Determination of an appropriate sanction for a Rosario violation "is committed to the trial court's sound discretion, and while the degree of prosecutorial fault may be considered, the court's attention should focus primarily on the overriding need to eliminate prejudice to the defendant" (Peo-ple v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134; see, People v. Kelly, 62 N.Y.2d 516, 520-521, 478 N.Y.S.2d 834, 467 N.E.2d 498). We are unable to identify any prejudice that inured to defendant in consequence of the destruction of the tape, and accordingly find that the permissive adverse inference charge was an adequate sanction (see, e.g., People v. Joseph, 86 N.Y.2d 565, 572, 635 N.Y.S.2d 123, 658 N.E.2d 996; People v. Martinez, supra, at 940, 528 N.Y.S.2d 813, 524 N.E.2d 134).

Defendant next claims to be aggrieved by the introduction of identification evidence, arguing that it was the product of an unduly suggestive showup. We strongly disagree. The showup in this case was conducted within minutes of the arrest, which occurred within minutes of Collins' call reporting the crime. The arresting officers observed defendant, who matched the detailed description transmitted in response to Collins' call, in an adjoining rear yard looking into windows. Collins' wife observed the events which transpired following the arrival of the police, including the presence of defendant in the adjoining yard and his arrest by the police. The rapid unfolding of events vitiated any possibility of suggestive police activity attendant to the identification process....