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

153
KA 10-01684
PRESENT: SMITH, J.P., CARNI, SCONIERS, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JAMES ADAMS, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRENTON P. DADEY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered August 3, 2009. The judgment
convicted defendant, upon a jury verdict, of aggravated driving while
intoxicated and driving while intoxicated.

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

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of aggravated driving while intoxicated (Vehicle
and Traffic Law § 1192 [2-a]) and driving while intoxicated (§ 1192
[3]). Defendant contends that his discovery rights were violated
based on the People’s failure to retain a videotape of the stop. We
reject that contention. The issue concerning the alleged existence of
a videotape of the stop was contested at trial and thus presented an
issue of credibility for the jury (see People v Smith, 73 AD3d 1469,
1470, lv denied 15 NY3d 778), and Supreme Court granted defendant’s
request for an adverse inference charge with respect to the alleged
videotape in the event that the jury credited defendant’s version that
there was in fact such a videotape (see People v Safford, 74 AD3d
1835, 1836-1837).

     Also contrary to defendant’s contention, the court properly
refused to suppress any evidence resulting from the traffic stop
inasmuch as the stop was based on probable cause (see People v Wright,
42 AD3d 942, 942-943, lv denied 9 NY3d 1011). We have reviewed
defendant’s remaining contentions and conclude that they are without
merit.


Entered:    February 18, 2011                      Patricia L. Morgan
                                                   Clerk of the Court
