DAVIS, MARK J., PEOPLE v ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    440
    KA 10-00813
    PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    MARK J. DAVIS, DEFENDANT-APPELLANT.
    LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.
    GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (COURTNEY E. PETTIT OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Oswego County Court (Walter W.
    Hafner, Jr., J.), rendered May 18, 2009. The judgment convicted
    defendant, upon a jury verdict, of driving while intoxicated, a class
    D felony, and aggravated unlicensed operation of a motor vehicle in
    the first degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: On a prior appeal, we affirmed the judgment
    convicting defendant upon a jury verdict of, inter alia, felony
    driving while intoxicated (Vehicle and Traffic Law §§ 1192 [3]; 1193
    [1] [c] [ii]; People v Davis, 91 AD3d 1273). We subsequently granted
    defendant’s motion for a writ of error coram nobis on the ground that
    appellate counsel had failed to raise an issue on appeal that may have
    merit, i.e., that County Court erred when it allegedly failed to
    comply with CPL 310.30 in regard to court exhibit #4 (People v Davis,
    96 AD3d 1512), and we vacated our prior order. We now consider the
    appeal de novo.
    Contrary to the contention of defendant, the court complied with
    CPL 310.30 in regard to court exhibit #4. The supplemental transcript
    that was submitted by the People with their brief establishes that the
    court provided meaningful notice to the parties of the contents of the
    jury note and provided a meaningful response thereto (see generally
    People v Kadarko, 14 NY3d 426, 429; People v O’Rama, 78 NY2d 270, 276-
    277). We reject defendant’s contention that we should not rely upon
    the supplemental transcript because it was not part of the original
    record on appeal. The supplemental transcript was certified by the
    court reporter as being an accurate transcript from the final day of
    the trial, and was “recertified” by her with respect to court exhibit
    #4 and the colloquy relating thereto, “which was inadvertently omitted
    from the original transcript.” The parties stipulated that
    -2-                           440
    KA 10-00813
    transcripts of the jury trial would be submitted to this Court, and
    the supplemental transcript thus falls within that stipulation.
    Moreover, according to our rules, “[i]n a criminal matter, the failure
    of the parties or their attorneys to list in the stipulation to the
    record on appeal any transcript, exhibit or other document that
    constituted a part of the underlying prosecution shall not preclude
    the [C]ourt from considering such transcript, exhibit or other
    document in determining the appeal” (22 NYCRR 1000.4 [a] [1] [iii]).
    We may therefore consider the supplemental transcript attached to the
    People’s brief pursuant to that rule.
    Defendant failed to preserve for our review his contention that
    the court violated CPL 270.15 (2) in conducting the jury selection
    (see generally People v Hayes, 71 AD3d 1477, 1477, lv denied 15 NY3d
    751; People v Dickens, 48 AD3d 1034, 1034, lv denied 10 NY3d 958), and
    we decline to exercise our power to review that contention as a matter
    of discretion in the interest of justice (see CPL 470.15 [6] [a]). We
    reject defendant’s further contention that he was denied effective
    assistance of counsel based on defense counsel’s failure to preserve
    for our review the contention regarding the court’s alleged violation
    of CPL 270.15 (2) (see People v Madera, 103 AD3d 1197, 1200). Viewing
    the evidence in light of the elements of the crimes as charged to the
    jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
    contention that the verdict is against the weight of the evidence (see
    generally People v Bleakley, 69 NY2d 490, 495).
    Defendant contends that the court erred in denying his motion in
    limine concerning the People’s alleged spoliation of evidence, i.e., a
    whiskey bottle and a prescription bottle of hydrocodone. We reject
    that contention. A police officer observed a one-half to three-
    quarter full whiskey bottle in the center of the front seat of
    defendant’s vehicle when he was pulled over, and the officer left the
    whiskey bottle in the vehicle without touching it. After defendant
    was arrested, the officer found a prescription medication bottle
    containing hydrocodone on defendant’s person, which was returned to
    him. Inasmuch as the police never lost or destroyed any evidence,
    there was no spoliation (see generally People v Haupt, 71 NY2d 929,
    931).
    Entered:   May 3, 2013                          Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 10-00813

Filed Date: 5/3/2013

Precedential Status: Precedential

Modified Date: 10/8/2016