Opinion
7738 Ind. 428/14
11-29-2018
The PEOPLE of the State of New York, Respondent, v. Darnell HOLMES, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Allison N. Kahl of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Allison N. Kahl of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Gische, Kapnick, Gesmer, JJ.
The court should have granted defendant's request to charge third-degree robbery as a lesser included defense of first-degree robbery. The court's first-degree robbery charge, consistent with the indictment, required the People to prove that defendant used or threatened to use a knife; it is undisputed that a finding that defendant wielded some weapon or object other than a knife would not support first-degree robbery in this case. There was a reasonable view of the evidence, viewed in the light most favorable to defendant, that he forcibly stole property from the victim, but did not use or threaten to use a knife in the course of doing so ( People v. Rivera, 77 A.D.3d 483, 909 N.Y.S.2d 56 [1st Dept. 2010] ). On the facts presented, the jury could have reasonably reached these findings by generally crediting the victim's account, but finding that her testimony about seeing defendant using a knife was mistaken. Moreover, while this circumstance is not controlling, we note that the People joined in defendant's request for submission of third-degree robbery.
Furthermore, the court should also have granted defendant's request for an adverse inference charge as to surveillance photos taken in the victim's livery cab after other photos, introduced at trial, were taken. The photos in evidence showed defendant in the back seat before he left and allegedly returned to rob the driver. The Police Department collected the photos but destroyed all but a few of them, which were introduced at trial through a detective who alleged that other members of his team selected them as the most relevant. Defendant established that the missing photos were "reasonably likely to be material" ( People v. Handy, 20 N.Y.3d 663, 669, 966 N.Y.S.2d 351, 988 N.E.2d 879 [2013] ), since they might have shown what type of weapon or object was used by the perpetrator. The record fails to support the People's assertion that the camera could not have recorded the incident because it recorded only when someone sat in the back seat. The detective merely testified that he had seen such cameras in some unrelated cases, and the People did not establish that any witness was knowledgeable about how the particular camera in this case was activated. Under these circumstances, the adverse inference change was "mandatory upon request" ( People v. Viruet, 29 N.Y.3d 527, 532, 59 N.Y.S.3d 294, 81 N.E.3d 828 [2017] ).
This error was not harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ), and it compounded the error in failing to submit the lesser included offense. Both of these errors affected the jury's opportunity to consider whether the People had met their burden of proving that defendant used or threatened to use a knife. Insofar as any of defendant's appellate arguments for the adverse inference charge are unpreserved, we reach them in the interest of justice.
Since we are remanding for a new trial, we do not reach defendant's remaining arguments on appeal.