Opinion
2018-13739 Ind. No. 663/17
10-12-2022
The PEOPLE, etc., respondent, v. Ishmael LOPEZ, appellant.
Patricia Pazner, New York, NY (Olivia Gee of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Amanda Iannuzzi of counsel), for respondent.
Patricia Pazner, New York, NY (Olivia Gee of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Amanda Iannuzzi of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (John Latella, J.), rendered November 7, 2018, convicting him of attempted burglary in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the loss of video surveillance footage introduced at trial does not preclude effective appellate review of his conviction (see People v. Yavru–Sakuk, 98 N.Y.2d 56, 59, 745 N.Y.S.2d 787, 772 N.E.2d 1145 ). The missing surveillance video is not necessary to the review of the legal sufficiency of the evidence presented at trial (see id. at 61, 745 N.Y.S.2d 787, 772 N.E.2d 1145 ; People v. Strollo, 191 N.Y. 42, 66, 83 N.E. 573 ). Further, to the extent that the missing evidence is of substantial importance to the remaining issues raised on appeal, reversal is not warranted as the record adequately reflects the relevant information, and its accuracy is not disputed (see People v. Jackson, 98 N.Y.2d 555, 560, 750 N.Y.S.2d 561, 780 N.E.2d 162 ; People v. Skinner, 298 A.D.2d 625, 747 N.Y.S.2d 857 ).
The Supreme Court providently exercised its discretion in denying the defendant's motion for a mistrial when the victim briefly testified on cross-examination that he had previously identified the defendant at a hearing and referenced the presence of a parole officer at that hearing (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 ; People v. Brown, 76 A.D.3d 532, 904 N.Y.S.2d 911 ; People v. Panzarino, 282 A.D.2d 292, 293, 724 N.Y.S.2d 151 ; People v. Banks, 130 A.D.2d 498, 499, 515 N.Y.S.2d 81 ). Moreover, as the defendant declined the court's offer to give a curative instruction (see People v. Morales, 301 A.D.2d 368, 752 N.Y.S.2d 856 ), he should not be heard to complain on appeal about the lack of any curative actions taken by the court (see People v. Karim, 185 A.D.3d 464, 125 N.Y.S.3d 278 ).
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 guilt 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, 348, 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 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 ).
CONNOLLY, J.P., CHRISTOPHER, WOOTEN and WAN, JJ., concur.