Opinion
2015–05622 Ind. No. 6128/13
01-23-2019
The PEOPLE, etc., Respondent, v. Ruben SANTIAGO, Appellant.
Paul Skip Laisure, New York, N.Y. (Michael Arthus of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubort of counsel; Javon Henry on the brief), for respondent.
Paul Skip Laisure, New York, N.Y. (Michael Arthus of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubort of counsel; Javon Henry on the brief), for respondent.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, JEFFREY A. COHEN, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the Supreme Court's adverse inference charge was an insufficient sanction for the loss of an audiotaped statement given by a witness to an assistant district attorney (see CPL 470.05[2] ; People v. Manigualt, 125 A.D.3d 1480, 3 N.Y.S.3d 850 ; People v. Anonymous, 38 A.D.3d 438, 438–439, 832 N.Y.S.2d 527 ). In any event, it was an appropriate sanction (see People v. Asaro, 94 AD3d 773, 774, 941 N.Y.S.2d 251, affd 21 N.Y.3d 677, 976 N.Y.S.2d 10, 998 N.E.2d 810 ; People v. Maddix, 244 A.D.2d 432, 664 N.Y.S.2d 80 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's argument in his pro se supplemental brief challenging the legal sufficiency of the evidence supporting his conviction of robbery in the second degree is unpreserved for appellate review (see CPL 470.05[2] ). In any event, 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 of robbery in the second degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), 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 ).
Further, to the extent that the defendant contends in his pro se supplemental brief that his conviction of robbery in the second degree was repugnant to his acquittal of robbery in the first degree, that argument is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the contention is without merit (see People v. Cooper , 118 A.D.2d 721, 500 N.Y.S.2d 53 ).
LEVENTHAL, J.P., CHAMBERS, AUSTIN and COHEN, JJ., concur.