People v. Rivera

Decision Date11 March 2015
Docket Number2011-11381
Citation6 N.Y.S.3d 75,2015 N.Y. Slip Op. 01972,126 A.D.3d 818
PartiesThe PEOPLE, etc., respondent, v. Gamalier RIVERA, appellant.
CourtNew York Supreme Court — Appellate Division

126 A.D.3d 818
6 N.Y.S.3d 75
2015 N.Y. Slip Op. 01972

The PEOPLE, etc., respondent
v.
Gamalier RIVERA, appellant.

2011-11381

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

March 11, 2015.


6 N.Y.S.3d 76

Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Daniel Bresnahan of counsel), for respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and HECTOR D. LaSALLE, JJ.

Opinion

126 A.D.3d 818

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered November 23, 2011, convicting him of robbery in the second degree (two counts), assault in the second degree, criminal possession of a weapon in the fourth degree, resisting arrest, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

126 A.D.3d 819

ORDERED that the judgment is affirmed.

The defendant's motion to dismiss the indictment was properly denied (see CPL 190.50 ). Moreover, contrary to the defendant's contention, even if his initial assigned counsel failed to act on his desire to testify before the grand jury, any such failure on the part of counsel did not, under the circumstances of this case, amount to the deprivation of the effective assistance of counsel (see People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130 ; People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 ).

The defendant's contention that the Supreme Court should have given an adverse inference charge to the jury or otherwise sanctioned the People based on the alleged failure of the police to recover a store surveillance videotape is without merit. “ ‘The People are subject to sanctions

6 N.Y.S.3d 77

for failing to preserve discoverable evidence only if the evidence is lost or destroyed while in their possession’ ” (People v. Dockery, 107 A.D.3d 913, 914, 969 N.Y.S.2d 62, quoting People v. Dei, 2 A.D.3d 1459, 1461, 769 N.Y.S.2d 772 ). Here, the record does not establish that the videotape was ever in the possession of the police (see People v. Dockery, 107 A.D.3d at 914, 969 N.Y.S.2d 62 ; People v. Dei, 2 A.D.3d at 1460, 769 N.Y.S.2d 772 ; People v. Tutt, 305 A.D.2d 987, 987, 758 N.Y.S.2d 570 ; People v. O'Brien,...

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6 cases
  • People v. Caban
    • United States
    • New York Supreme Court — Appellate Division
    • March 11, 2015
  • People v. Boyd
    • United States
    • New York Supreme Court — Appellate Division
    • February 17, 2016
    ...going to trial rather than accepting a plea offer, as he failed to raise this issue before the sentencing court (see People v. Rivera, 126 A.D.3d 818, 820, 6 N.Y.S.3d 75 ; People v. Evans, 16 A.D.3d 595, 792 N.Y.S.2d 124 ). In any event, the fact that the sentence imposed after trial was gr......
  • People v. Pierre, 2011-06957
    • United States
    • New York Supreme Court — Appellate Division
    • March 11, 2015
    ... ... The fact that both incidents involved sexual offenses does not provide a sufficient basis to require severance (see People v. Cox, 298 A.D.2d 461, 748 N.Y.S.2d 772 ; People v. Rivera, 186 A.D.2d 594, 595, 588 N.Y.S.2d 391 ).In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the factfinder's opportunity ... ...
  • People v. McClough
    • United States
    • New York Supreme Court — Appellate Division
    • March 9, 2016
    ...on his motion to dismiss (see CPL 470.05[2] ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Rivera, 126 A.D.3d 818, 819, 6 N.Y.S.3d 75 ; People v. Elie, 110 A.D.3d 1003, 1004, 973 N.Y.S.2d 358 ). In any event, viewing the evidence in the light most favorable......
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