Opinion
570251/03.
Decided July 27, 2004.
Defendant appeal from a judgment of the Criminal Court, New York County, rendered December 12, 2002 after a jury trial (A. Kirke Bartley, Jr., J.) convicting him of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40), and imposing sentence.
Judgment of conviction rendered December 12, 2002 (A. Kirke Bartley, Jr., J.) affirmed.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
Evidence at trial showed that defendant entered a fitting room in the basement of a department store after "random[ly]" selecting several articles of clothing; that defendant was handed several additional garments by an apprehended accomplice (who subsequently pled guilty to petit larceny) while inside the fitting room; and that defendant concealed four of the garments in a shopping bag, proceeded to the main level and nearly reached the store exit door without offering to pay for the secreted items. Such evidence, viewed most favorably to the People, clearly established the defendant's guilt of the theft-related offenses charged ( see People v. Olivio, 52 NY2d 309). Moreover, upon our independent review of the facts and giving due deference to the jury's determinations of credibility, we are satisfied that the verdict was not against the weight of the evidence.
The trial court appropriately exercised its broad discretionary authority ( see People v. Singleton, 41 NY2d 402) in denying defendant's request for an adjournment of unspecified duration to summon a police witness, since defendant's request was based on mere speculation that the officer might provide material, non-cumulative evidence ( see People v. Wearing, 246 AD2d 404, 405, lv denied 91 NY2d 946). Also proper was the court's denial of defendant's request for an adverse inference charge with respect to a store surveillance videotape that was never in the possession of the police or prosecution. "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 AD3d 226, lv denied 2 NY3d 737).
This constitutes the decision and order of the court.