People v. Viruet

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Viruet, 2015 NY Slip Op 6687, 131 A.D.3d 714, 15 N.Y.S.3d 447 (N.Y. App. Div. 2015)
• Decision Date: 26 August 2015
• Docket Number: 2013-00800
• Parties: The PEOPLE, etc., respondent, v. Miguel VIRUET, appellant.

131 A.D.3d 714

15 N.Y.S.3d 447

2015 N.Y. Slip Op. 06687

The PEOPLE, etc., respondent

v.Miguel VIRUET, appellant.

2013-00800

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

Aug. 26, 2015.

Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and COLLEEN D. DUFFY, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered January 8, 2013, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the identification evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). 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 identity as the perpetrator and his guilt of the crimes of which he was convicted beyond a reasonable doubt. Moreover, 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 jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's claim that the Supreme Court deprived him of his right to a public trial is unpreserved for appellate review (see People v. Barnes, 125 A.D.3d 990, 991, 4 N.Y.S.3d 296 ; People v. Borukhova, 89 A.D.3d 194, 225, 931 N.Y.S.2d 349 ). In any event, the defendant's contention is without merit.

The Supreme Court properly declined to give an adverse inference charge with respect to a missing surveillance videotape. There was no evidence that the video camera recorded anything relevant to the case, and the evidence suggested otherwise (see People v. Rasako, 78 A.D.3d 498, 911 N.Y.S.2d 48 ; People v. Hooks, 71 A.D.3d 1184, 1186, 896 N.Y.S.2d 501 ). Furthermore, defense counsel thoroughly cross-examined the officer about the missing videotape and utilized its loss as part of his summation, and there was no prejudice to the defendant, since the two witnesses who had seen the videotape prior to its loss testified that the shooter was not depicted in the videotape (see People v. Martinez, 22 N.Y.3d 551, 983 N.Y.S.2d 468, 6 N.E.3d 586 ; People v. Mitchell, 216 A.D.2d 156, 156–157, 628 N.Y.S.2d 650 ; People v. Haupt, 128 A.D.2d 172, 174–175, 515 N.Y.S.2d 537, affd. 71 N.Y.2d 929, 528 N.Y.S.2d 808, 524 N.E.2d 129 ).

The defendant's contention that the Supreme Court failed to provide an expanded identification charge and that such failure deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2] ; People v. Baxter, 102 A.D.3d 805, 961 N.Y.S.2d 194 ). In any event, the defendant's contention is without merit (see People v. Knight, 87 N.Y.2d 873, 638 N.Y.S.2d 938, 662 N.E.2d 256 ; People v. Patrick, 102 A.D.3d 892, 958 N.Y.S.2d 210 ).

Viewing the record as a...