People v Ortiz (Benito)

[*1] People v Ortiz (Benito) 2007 NY Slip Op 51052(U) [15 Misc 3d 141(A)] Decided on May 23, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, DAVIS, JJ
570584/05.

People of the State of New York, Respondent,

against

Benito Ortiz, Defendant-Respondent.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Arthur Birnbaum, J.), rendered July 20, 2004, after a nonjury trial, convicting him of attempted assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Arthur Birnbaum, J.), rendered July 20, 2004, affirmed.

Defendant's claim that the evidence was legally insufficient to establish his guilt and disprove his justification defense is unpreserved for appellate review, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the verdict was supported by legally sufficient evidence. We further find that the verdict was not against the weight of the evidence. There is no basis for disturbing the trial court's determinations concerning credibility (see People v Bleakley, 69 NY2d 490 [1987]).

Defendant was not deprived of a fair trial by the People's failure to preserve a 911 tape or the court's failure to draw an adverse inference. There was no bad faith on the part of the People, a "sprint report" of the 911 call was provided to the defense, and defendant failed to demonstrate prejudice (see People v Bailey, 24 AD3d 106 [2005], lv denied 6 NY3d 773 [2006]; People v Wallace, 293 AD2d 556 [2002], lv denied 98 NY2d 714 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 23, 2007