People v Kobbah

People v Kobbah 2019 NY Slip Op 00401 Decided on January 22, 2019 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 January 22, 2019
Sweeny, J.P., Richter, Tom, Kern, Singh, JJ.
3304/10 8181

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

v

Modechai Kobbah, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Julia Chariott of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered March 18, 2013, convicting defendant, after a jury trial, of attempted assault in the third degree, and sentencing him to a term of 90 days, unanimously affirmed.

Defense counsel failed to provide details to support the claim that the police may have rendered defendant's own lineup suggestive by using the same set of fillers that had been used in the uncharged suspect's lineup the day before. Accordingly, the court providently exercised its discretion in denying disclosure of the lineup photo and related relief.

Although the court erred in failing to give the jury a limiting instruction that the victim's mother's testimony recounting her son's description of her assailant was not admitted for the truth, the error was harmless (see People v Crimmins, 36 NY2d 230 [1975]).

The court providently exercised its discretion in denying defendant's request for an adverse inference instruction regarding an inadvertently destroyed 911 tape. Defendant was not prejudiced, because the Sprint report afforded him sufficient opportunity for impeachment (see People v Brown, 92 AD3d 455, 456 [1st Dept 2012] lv denied 18 NY3d 955 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 22, 2019

CLERK