People v. Roe

• Decision Date: 27 September 1993
• Citation: 196 A.D.2d 899,602 N.Y.S.2d 401
• Parties: The PEOPLE, etc., Respondent, v. Raymond ROE a/k/a Raymond Rue, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 401

602 N.Y.S.2d 401

196 A.D.2d 899

The PEOPLE, etc., Respondent, v. Raymond ROE a/k/a Raymond Rue, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 27, 1993.

Spencer A. Leeds, Brooklyn, for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Gary Fidel, Brian Gardner, and Linda Cantoni, of counsel), for respondent.

Before THOMPSON, J.P., and MILLER, SANTUCCI and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Goldstein, J.), rendered March 15, 1991, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his conviction of criminal sale of a controlled substance in the third degree is unpreserved for appellate review (see, CPL 470.05[2]; People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v. Lewis, 182 A.D.2d 777, 582 N.Y.S.2d 772; People v. McKinnon, 176 A.D.2d 193, 574 N.Y.S.2d 201; People v. Santiago, 176 A.D.2d 521, 574 N.Y.S.2d 711). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5].

In addition, contrary to the defendant's contention, we find that he was not deprived of a fair trial by being tried in abstentia after he absconded at the commencement of the trial (see, People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313; People v. Floyd, 179 A.D.2d 770, 579 N.Y.S.2d 138; People v. Melendez, 160 A.D.2d 739, 553 N.Y.S.2d 808; see also, People v. Wallace, 182 A.D.2d 1079, 583 N.Y.S.2d 71; cf., People v. Amato, 172 A.D.2d 545, 567 N.Y.S.2d 873).

The defendant's contention regarding the inadequacy of the court's adverse inference charge, imposed as an appropriate sanction for the destruction of the scratch paper upon which the arresting officer had originally written the descriptions of the perpetrators (see, People v. Wallace, 76 N.Y.2d 953, 563 N.Y.S.2d 722, 565 N.E.2d 471; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64), is unpreserved for appellate review (see, People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430) and, in any event, without merit (see, People v. Lawley, 196 A.D.2d 890, 602 N.Y.S.2d 400) [decided herewith]; People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134; People v. Morillo, 181 A.D.2d 532, 582...