People v. Porter

• Decision Date: 31 January 1992
• Citation: 580 N.Y.S.2d 117,179 A.D.2d 1018
• Parties: PEOPLE of the State of New York, Respondent, v. Carl PORTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 117

580 N.Y.S.2d 117

179 A.D.2d 1018

PEOPLE of the State of New York, Respondent, v. Carl PORTER, Appellant.

Supreme Court, Appellate Division Fourth Department.

Jan. 31, 1992.

Edward J. Nowak by Stephen Bird, Rochester, for appellant.

Howard R. Relin by Alan Cruikshank, Rochester, for respondent.

Before DENMAN, P.J., and CALLAHAN, BOOMER, LAWTON and DAVIS, JJ.

MEMORANDUM:

The trial court erred in admitting the statement of a coconspirator because the People failed to establish either that he was unavailable at the time of trial or that the statement bore some indicia of reliability (see, People v. Ayala, 75 N.Y.2d 422, 432, 554 N.Y.S.2d 412, 553 N.E.2d 960, rearg. denied 76 N.Y.2d 773, 559 N.Y.S.2d 986, 559 N.E.2d 680; People v. Sanders, 56 N.Y.2d 51, 62-64, 451 N.Y.S.2d 30, 436 N.E.2d 480, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247; People v. Perez, 175 A.D.2d 614, 572 N.Y.S.2d 550; People v. Warren, 156 A.D.2d 972, 973, 549 N.Y.S.2d 263, lv. denied 75 N.Y.2d 925, 555 N.Y.S.2d 44, 554 N.E.2d 81). We deem the error harmless, however, because the record reveals that other properly admitted evidence provided overwhelming proof of defendant's guilt and there is no reasonable possibility that the jury verdict would have been different absent the error (see, People v. Perez, supra; People v. Persico, 157 A.D.2d 339, 349-350, 556 N.Y.S.2d 262, lv. denied 76 N.Y.2d 895, 561 N.Y.S.2d 558, 562 N.E.2d 883). We reject defendant's contention that his convictions of criminal sale of a controlled substance in the second degree (see, Penal Law §§ 20.00, 220.41[1], and criminal possession of a controlled substance in the third degree (see, Penal Law §§ 20.00, 220.16[1], [12] are not supported by legally sufficient evidence (see, People v. Kennedy, 47 N.Y.2d 196, 417 N.Y.S.2d 452, 391 N.E.2d 288).

Further, we reject defendant's argument that reversal of his conviction and dismissal of the indictment is warranted because the People preserved neither the "buy money" nor the photocopies made of that money. "In the absence of some showing suggesting that [either the 'buy money' or the photocopies of a part of that money] possessed some exculpatory value, a reversal for the failure to preserve evidence is not required" (People v. Frye, 129 A.D.2d 985, 986, 514 N.Y.S.2d 295, lv. denied 72 N.Y.2d 859, 532 N.Y.S.2d 509, 528 N.E.2d 899), especially when, as here, the exculpatory value of the unpreserved evidence is purely speculative (see, People v. Scattareggia, 152 A.D.2d 679, 680, 543 N.Y.S.2d 742; People v. Ramos, 147 A.D.2d 718, 538 N.Y.S.2d 327, lv. denied 74 N.Y.2d 817, 546 N.Y.S.2d 575, 545 N.E.2d 889). Moreover, the record does not demonstrate that the People acted in bad faith in failing to preserve the missing evidence (see, People v. Haupt, 71 N.Y.2d 929, 528 N.Y.S.2d 808, 524 N.E.2d 129).

Finally, a review of the court's charge on circumstantial evidence reveals that the jury properly was "instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that...