Opinion
Appeal No. 15180 Ind No. 1190/16Case No. 2018-2252
01-27-2022
The People of the State of New York, Respondent, v. Jesus Bailey, Defendant-Appellant. Appeal No. 15180 No. 2018-2252
Freshfields Bruckhaus Deringer U.S. LLP, New York (Jane Peng of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Freshfields Bruckhaus Deringer U.S. LLP, New York (Jane Peng of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Before: Kapnick, J.P., Gesmer, González, Kennedy, Shulman, JJ.
Judgment, Supreme Court, New York County (Neil E. Ross, J.), rendered January 8, 2018, convicting defendant, after a jury trial, of grand larceny in the third degree, criminal possession of a forged instrument in the second degree and resisting arrest, and sentencing him, as a second felony offender, to an aggregate term of 2½ to 5 years, unanimously affirmed.
The court properly denied defendant's request for an adverse inference instruction regarding portions of a restaurant's video surveillance footage that the police did not copy and that were not presented at trial. The essence of defendant's complaint is not about the duty to preserve evidence that has been acquired, but about a nonexistent duty to collect available evidence (see People v Hayes, 17 N.Y.3d 46, 51-52 [2011], cert denied 565 U.S. 1095 [2011]). "The People have no constitutional or statutory duty to acquire, or prevent the destruction of, evidence generated and possessed by private parties" (People v Banks, 2 A.D.3d 226, 226 [1st Dept 2003], lv denied 2 N.Y.3d 737 [2004]). The videotape generated by the restaurant's video system was not placed within the People's constructive possession when the investigating officer merely viewed the tape and recorded the portions he considered significant using the camera in his phone (see People v Matos, 138 A.D.3d 426 [1st Dept 2016], lv denied 27 N.Y.3d 1135 [2016], cert denied 580 U.S. ___, 137 S.Ct. 577 [2016]).
The court providently exercised its discretion in declining to give an expanded "witness plus" identification charge to the jury (see People v Boone, 30 N.Y.3d 521, 536-537 [2017]; People v Whalen, 59 N.Y.2d 273, 279 [1983]), because there was no genuine issue of identification in this case. Defendant used a counterfeit credit card to pay for thousands of dollars' worth of liquor in a restaurant. Apart from any identification testimony, the evidence showed, among other things, that in a series of liquor purchases defendant used the counterfeit card bearing his actual name, presented his actual driver's license, and signed his actual name, and that when the restaurant manager realized the card was a forgery defendant was immediately detained by security guards who held him for the police.
We perceive no basis for reducing the sentence.