People v Smith

People v Smith 2007 NY Slip Op 09297 [45 AD3d 1483] November 23, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v Mark A. Smith, Appellant.

—[*1] Edward J. Nowak, Public Defender, Rochester (James Eckert of counsel), for defendant-appellant.

Mark A. Smith, defendant-appellant pro se.

Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), rendered December 9, 2003. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree and grand larceny in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the second degree (Penal Law § 160.10 [2] [a]) and grand larceny in the fourth degree (§ 155.30 [5]). Contrary to defendant's contention, the verdict is not against the weight of the evidence with respect to whether the victim sustained a physical injury within the meaning of Penal Law § 10.00 (9) (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to the contention of defendant in his pro se supplemental brief, the evidence also is legally sufficient in that respect (see generally People v Guidice, 83 NY2d 630, 636 [1994]; People v Gerecke, 34 AD3d 1260, 1261 [2006], lv denied 7 NY3d 925 [2006]). Although defendant contends that the testimony of the victim with respect to her level of pain was not credible, the jury was entitled to credit the testimony of the victim that the significant bump on her head resulting from having been punched by defendant caused debilitating pain, requiring her to take pain medication and to remain in bed for three days (see generally Guidice, 83 NY2d at 636). Defendant failed to object to Supreme Court's jury instructions on the issue of physical injury and thus failed to preserve for our review the challenge in his pro se supplemental brief to those instructions (see CPL 470.05 [2]). We decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Finally, we reject the contention of defendant in his pro se supplemental brief that the court erred in failing to impose a sanction based upon the prosecution's failure to secure a hat found at the scene of the crime. "The People are subject to sanctions for failing to preserve discoverable evidence only if the evidence is lost or destroyed while in their possession" (People v Dei, 2 AD3d 1459, 1461 [2003], lv denied 1 NY3d 626 [2004]; see People v Tutt, 305 AD2d 987 [2003], lv denied [*2]100 NY2d 588 [2003]; see also People v Carpenter, 187 AD2d 519, 522 [1992], lv denied 81 NY2d 838, 1012 [1993]), and here the hat was never in the possession of the People. Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Pine, JJ.