Summary
In People v Okehoffurum (201 A.D.2d 508 [2d Dept 1994], the Second Department, citing Dekle (supra) and People v Logan (74 N.Y.2d 859), found that the defendant's failure to specify the knowledge of weight issue in his CPL 290.10 motion left the issue unpreserved for its review.
Summary of this case from People v. QuinonesOpinion
February 7, 1994
Appeal from the Supreme Court, Queens County (Golia, J.).
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of a fair trial on the ground that the prosecutor exercised his peremptory challenges in a racially discriminatory manner. Even assuming that the defendant made a prima facie showing of discriminatory jury selection, the record supports the trial court's conclusion that the prosecutor articulated race-neutral reasons for excusing the two black prospective jurors in question (see, Batson v Kentucky, 476 U.S. 79; People v. Kern, 75 N.Y.2d 638, cert denied 498 U.S. 824; People v. Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352).
Contrary to the People's contention, the trial court was fully apprised of the defendant's claim that the prosecution failed to preserve discoverable material pursuant to CPL 240.20, and, thus, the issue is preserved for appellate review. The nature and extent of the sanction to be imposed depends upon the degree of the prosecution's bad faith, the importance of the evidence lost, and the evidence of guilt adduced at trial, and is vested in the trial court's sound discretion (see, People v. Kelly, 62 N.Y.2d 516, 521; People v. Torres, 190 A.D.2d 52, 54). Under the circumstances of this case, including the finding of no bad faith on the part of the People, the trial court did not improvidently exercise its discretion in denying the defendant's request to strike all testimony of the People's key witness.
The defendant's contention that the People failed to adduce legally sufficient evidence establishing that he had knowledge of the weight of the heroin beyond a reasonable doubt is unpreserved for appellate review (see, People v. Logan, 74 N.Y.2d 859; People v. Bynum, 70 N.Y.2d 858; People v. Dekle, 56 N.Y.2d 835). In any event, the defendant's contention is without merit. The record reveals that the defendant was carrying a briefcase, which contained over one pound of heroin, and that he expected to receive between $3,000 and $5,000 for transporting the briefcase into the United States. Evidence that a defendant handled a controlled substance, together with other circumstantial evidence, may give rise to an inference that the possessor knew the weight of the controlled substance which he or she possessed (see, People v. Ryan, 82 N.Y.2d 497; People v. Reisman, 29 N.Y.2d 278, 285, cert denied 405 U.S. 1041).
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Thompson, J.P., O'Brien, Ritter and Altman, JJ., concur.