People v Smith

People v Smith 2014 NY Slip Op 08487 Decided on December 4, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 4, 2014
Tom, J.P., Sweeny, DeGrasse, Feinman, Gische, JJ.
13667 1744/05

[*1] The People of the State of New York, Ind. Respondent,

v

Howard Smith, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered August 1, 2005, convicting defendant, after a jury trial, of attempted murder in the second degree, robbery in the first degree and second degrees, attempted assault in the first degree and assault in the second degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 21 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant's homicidal intent could be reasonably inferred from his conduct (see generally People v Getch, 50 NY2d 456, 465 [1980]), including his repeated infliction of severe wounds to the victim's head and neck by

swinging a meat cleaver (see e.g. People v Ross, 270 AD2d 36 [1st Dept 2000] lv denied 95 NY2d 803 [2000]). Even if defendant's motive was to escape with stolen property, the jury could have reasonably found that he nevertheless intended to kill the person who sought to apprehend him.

The court properly exercised its discretion in denying defendant's mistrial motion, made after the People's loss of exhibits already in evidence and viewed by the jury, consisting of the bloody clothing of both defendant and the victim. There was no evidence of bad faith on the part of the People, who inadvertently caused the exhibits to be discarded, and any prejudice to defendant from the absence of the exhibits from the courtroom for the remainder of the trial was highly speculative (see e.g. People v Rubero, 294 AD2d 310 [1st Dept 2002], lv denied 98 NY2d 713 [2002]). The clothing was not critical to the People's case or to any trial issues. Although defendant claims that he needed the presence of the coat in order to raise certain issues, we note that the coat was present during the testimony of the victim and another important witness, and defendant had a full opportunity to cross-examine these witnesses on all matters relating to the coat. Furthermore, the court gave the jury an adverse inference instruction. Defendant has not preserved any

of his arguments regarding that instruction, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 4, 2014

CLERK