People v. Okehoffurum
| Decision Date | 07 February 1994 |
| Parties | The PEOPLE, etc., Respondent, v. Alex OKEHOFFURUM, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Gabriel J. Chin, of counsel), for appellant, and appellant pro se.
Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, John M. Castellano, Pamela J. Byer and Tammy J. Smiley, of counsel), for respondent.
Before THOMPSON, J.P., and O'BRIEN, RITTER and ALTMAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Golia, J.), rendered December 6, 1991, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that he was deprived of a fair trial on the ground that the prosecutor exercised his peremptory challenges in a racially discriminatory manner. Even assuming that the defendant made a prima facie showing of discriminatory jury selection, the record supports the trial court's conclusion that the prosecutor articulated race-neutral reasons for excusing the two black prospective jurors in question (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50; People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395).
Contrary to the People's contention, the trial court was fully apprised of the defendant's claim that the prosecution failed to preserve discoverable material pursuant to CPL 240.20, and, thus, the issue is preserved for appellate review. The nature and extent of the sanction to be imposed depends upon the degree of the prosecution's bad faith, the importance of the evidence lost, and the evidence of guilt adduced at trial, and is vested in the trial court's sound discretion (see, People v. Kelly, 62 N.Y.2d 516, 521, 478 N.Y.S.2d 834, 467 N.E.2d 498; People v. Torres, 190 A.D.2d 52, 54, 597 N.Y.S.2d 492). Under the circumstances of this case, including the finding of no bad faith on the part of the People, the trial court did not improvidently exercise its discretion in denying the defendant's request to strike all testimony of the People's key witness.
The defendant's contention that the People failed to adduce legally sufficient evidence establishing that he had knowledge of the weight of the heroin beyond a reasonable doubt is unpreserved for appellate review (see, People v. Logan, 74 N.Y.2d 859, 547 N.Y.S.2d 828, 547 N.E.2d 83; People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4; People v. Dekle, 56 N.Y.2d 835, 452 N.Y.S.2d 568, 438 N.E.2d 101). In any event, the defendant's contention is without merit. The record reveals that the defendant was carrying a briefcase, which contained over one pound of heroin, and that he expected to receive between $3,000 and $5,000 for transporting the briefcase into the United States. Evidence that a defendant handled a controlled...
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