People v. Shapiro

• Decision Date: 10 February 1986
• Citation: 498 N.Y.S.2d 428,117 A.D.2d 688
• Parties: The PEOPLE, etc., Respondent, v. Barry SHAPIRO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 428

498 N.Y.S.2d 428

117 A.D.2d 688

The PEOPLE, etc., Respondent, v. Barry SHAPIRO, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 10, 1986.

Irving Anolik, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter A. Weinstein and John H. Larsen, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, EIBER and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered April 6, 1983, convicting him of kidnapping in the first degree (two counts), assault in the second degree (two counts), and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Contrary to defendant's contentions, the record discloses that there was more than sufficient evidence to sustain the jury's verdict convicting defendant of two counts of kidnapping in the first degree. Defendant merely challenges the sufficiency of the evidence by attacking the credibility of the complaining witness, whose testimony he claims must be judged as incredible in light of her background. It is axiomatic, however, that "issues of credibility are primarily for the jury, which has the 'advantage of seeing and hearing the witnesses' " (People v. Martin, 108 A.D.2d 928, 485 N.Y.S.2d 820, quoting from People v. Kidd, 76 A.D.2d 665, 666, 431 N.Y.S.2d 542, lv. dismissed 51 N.Y.2d 882, 434 N.Y.S.2d 1029, 414 N.E.2d 714; People v. Gruttola, 43 N.Y.2d 116, 122, 400 N.Y.S.2d 788, 371 N.E.2d 506; People v. Rosenfeld, 93 A.D.2d 872, 461 N.Y.S.2d 383). In view of the jury verdict we must view the evidence in a light most favorable to the People (see, People v. Di Girolamo, 108 A.D.2d 755, 485 N.Y.S.2d 98, lv. denied 64 N.Y.2d 1133, --- N.Y.S.2d ----, 479 N.E.2d 831). Moreover, we are "traditionally resistant to second-guessing determination on this issue" (People v. Di Girolamo, supra, 108 A.D.2d at p. 755, 485 N.Y.S.2d 98; see, People v. Rodriguez, 72 A.D.2d 571, 421 N.Y.S.2d 10). We note, furthermore, that the background of the complaining witness was fully presented for the jury's consideration and it chose to credit her testimony (see, People v. Martin, supra).

The trial court did not abuse its discretion when it declined to dismiss the indictment premised upon the People's failure to preserve the complainant's blood sample, upon which the People's laboratory test had been performed. The suppression of the People's laboratory test results was a proper sanction in light of the circumstances at bar. The appropriate action in such a case, moreover, is committed to the sound discretion of the trial court and, as the Court of Appeals has recently noted, "as a general matter the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence" (People v. Kelly, 62 N.Y.2d 516, 521, 478 N.Y.S.2d 834, 467 N.E.2d 498). Nor do we find that the trial court erred in rejecting the claim that the People's alleged discovery delays denied defendant a fair trial or amounted to prosecutorial misconduct.

Despite defendant's contentions, the record discloses that the trial court did, in fact, act upon his Sandoval application, ruling that on cross-examination the People would be permitted to inquire as to whether defendant had ever been convicted of a felony without eliciting the underlying facts or the type of crime involved.

Defendant's contention that "crucial" evidence was withheld from the Grand Jury, rendering the indictment defective, is without merit. The information which defendant claims was withheld from the Grand Jury was not substantively exculpatory, but rather was information pertaining to the...