People v Brown

People v Brown 2010 NY Slip Op 02575 [71 AD3d 1043] March 23, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

The People of the State of New York, Respondent,
v
Torrell Brown, Appellant.

—[*1] Steven Banks, New York, N.Y. (Svetlana M. Kornfeind of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, Seth D. Blumenthal, and David Korngold of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered May 14, 2008, convicting him of robbery in the first degree, upon a jury verdict, and sentencing him to a determinate term of 12 years imprisonment, followed by five years of postrelease supervision.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the determinate term of 12 years imprisonment to a determinate term of nine years imprisonment; as so modified, the judgment is affirmed.

The Supreme Court providently exercised its discretion in declining to impose any sanction against the People for the loss of Rosario material (People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]). The defendant failed to carry his burden of showing a reasonable possibility that the police officer's destruction of a draft complaint report materially contributed to the defendant's conviction or caused him any prejudice (see CPL 240.75; People v Sorbello, 285 AD2d 88, 96 [2001]; People v Norris, 34 AD3d 501, 502-503 [2006]).

The defendant's contention that the trial court's response to a jury note was not "meaningful" (People v Malloy, 55 NY2d 296, 301 [1982], cert denied 459 US 847 [1982]; CPL 310.30) is not preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]) and, in any event, is without merit, as the supplemental charge conveyed a correct statement of the law (see People v Mateo, 5 AD3d 507 [2004]), and was consistent with the main charge to which the defendant did not object.

The sentence imposed was excessive to the extent indicated herein (see People v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Leventhal, Lott and Austin, JJ., concur.