People v. Torres

169 A.D.3d 1068

94 N.Y.S.3d 173

The PEOPLE, etc., Respondent,

v.Juan TORRES, Appellant.

2001–06966

Ind.No. 11401/98

Supreme Court, Appellate Division, Second Department, New York.

Argued–November 5, 2018

February 27, 2019

Paul Skip Laisure, New York, N.Y. (Lynn W.L. Fahey of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Nancy Fitzpatrick Talcott of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J. MARK C. DILLON HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Seymour Rotker, J.), rendered June 29, 2001, convicting him of criminal sale of a controlled substance in the third degree (two counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant was indicted on two counts of criminal sale of a controlled substance in the third degree for allegedly selling cocaine to an undercover police officer on March 4, 1998, and March 19, 1998. The sales allegedly took place at a deli where the defendant worked. At the nonjury trial, the undercover police officer testified regarding the sales and identified the defendant as the person who sold the cocaine to him. The Supreme Court convicted the defendant on both counts.

Viewing the evidence in the light most favorable to the prosecution (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we find that it was legally sufficient to establish the defendant's guilt of both counts of criminal sale of a controlled substance in the third degree beyond a reasonable doubt (see Penal Law § 229.39[1] ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPLR 470.15[5]; People v. Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPLR 470.15[5]; People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant contends that the Supreme Court should have granted his request for a permissive adverse inference charge with respect to the People's failure to turn over duly requested tape recordings and any other police records related to taped interactions between the undercover officer and a witness to the March 4, 1998, sale, who was also the defendant's unindicted co-defendant. " ‘A permissive adverse inference instruction typically serves as either: (1) a penalty for the government's violation of its statutory and constitutional duties or its destruction of material evidence; or (2) an explanation of logical inferences that may be drawn regarding the government's motives for failing to present certain evidence at trial’ " ( People v. Rosario, 143 A.D.3d 1004, 1005, 39 N.Y.S.3d 802, quoting People v. Durant, 26 N.Y.3d 341, 347, 23 N.Y.S.3d 98, 44 N.E.3d 173 ).

We agree with the defendant that the Supreme Court should have granted his request for a permissive adverse inference charge based upon the People's loss or destruction of the material requested by the defendant (see People v. Handy, 20 N.Y.3d 663, 669–670, 966 N.Y.S.2d 351, 988 N.E.2d 879 ; People v. Clarke, 66 A.D.3d 693, 885 N.Y.S.2d 629 ). "[A] permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State" ( People v. Handy, 20 N.Y.3d at 669, 966 N.Y.S.2d 351, 988 N.E.2d 879 ). Although the prosecutor stated that the missing tapes were unrelated to the sales at issue and were not recorded on the dates of the buys, he concededly never listened to them. Additionally, the officer who relayed the information that the tapes were not recorded on the dates of the buys to the prosecutor did not testify at trial.

Contrary to the People's contention, the error in denying the...