        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

102
KA 11-01952
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALVONSEY MANIGUALT, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, HARRIS BEACH PLLC,
PITTSFORD (ALLISON A. BOSWORTH OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered August 3, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). Defendant was a passenger in
a vehicle stopped by the police for a traffic infraction, and the
police arrested defendant upon observing the weapon in plain view when
defendant exited the vehicle. Within 30 days of defendant’s arrest,
defense counsel obtained a subpoena for video footage from a police
camera located in the vicinity of the traffic stop, but it was not
supplied. Defendant moved to suppress the evidence recovered as the
result of the traffic stop and, at the suppression hearing, there was
no explanation for the unavailability of the video footage. Defense
counsel requested an adverse inference, i.e., that the video footage
would have been favorable to the defense, due to its unavailability
despite a prompt subpoena. County Court denied defendant’s
suppression motion without mentioning whether it applied the requested
adverse inference.

     At the outset, we reject the People’s contention that defendant’s
plea of guilty precludes him from challenging the denial of his
suppression motion inasmuch as the record establishes that the court
decided his motion before he entered his guilty plea (see CPL 710.70
[2]; People v Elmer, 19 NY3d 501, 509-510; cf. People v Rosario, 64
AD3d 1217, 1217-1218, lv denied 13 NY3d 941), and defendant
conditioned his plea upon his ability to appeal the denial of his
                                 -2-                              102
                                                            KA 11-01952

suppression motion (cf. People v Kemp, 94 NY2d 831, 833).

     Defendant failed to preserve for our review his present
contention that the court erred in failing to preclude the police
officers’ testimony at the suppression hearing as a sanction for loss
of the video footage, inasmuch as he did not request any remedy other
than an adverse inference (see People v Anonymous, 38 AD3d 438, 438-
439, lv denied 8 NY3d 981; see also People v Johnson, 114 AD3d 1132,
1133, lv denied 24 NY3d 961). We decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [3] [c]). Defendant was entitled to a
permissive adverse inference under these circumstances (cf. People v
Brown, 92 AD3d 455, 456-457, lv denied 18 NY3d 955; see generally
People v Handy, 20 NY3d 663, 669), and we conclude that the court is
presumed to have rendered its decision upon that appropriate legal
criteria (see People v Lucas, 291 AD2d 890, 890-891; see generally
People v Moreno, 70 NY2d 403, 406). Finally, we conclude that the
court did not err in nevertheless crediting the testimony of the
police officers (see generally People v Richardson, 27 AD3d 1168,
1169).




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
