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

122
KA 12-01731
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TRAMELL BURTON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

TRAMELL BURTON, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MISHA A. COULSON
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered September 12, 2011. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree (two
counts), robbery in the second degree (two counts) and 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 a jury verdict of, inter alia, two counts of robbery in the first
degree (Penal Law § 160.15 [2], [4]). The charges arose from
defendant striking the victim on the head with a handgun, and
defendant and codefendant taking several of the victim’s possessions.

     We reject defendant’s contention that, because there is only
circumstantial evidence supporting the fact that he was a perpetrator,
the evidence is legally insufficient to support the conviction.
Viewing the circumstantial evidence in the light most favorable to the
People (see People v Hines, 97 NY2d 56, 62, rearg denied 97 NY2d 678),
we conclude that there is a valid line of reasoning and permissible
inferences that could lead a reasonable jury to conclude that
defendant struck the victim on the head with a handgun, and took the
victim’s possessions (see generally People v Bleakley, 69 NY2d 490,
495). Contrary to defendant’s further contention, 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 conclude that “the jury
could properly have inferred that defendant was one of the
perpetrators” (People v Goree, 309 AD2d 1204, 1204; see generally
People v Dukes, 160 AD2d 332, 332, lv denied 76 NY2d 847; People v
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                                                         KA 12-01731

Ngor Yip, 118 AD2d 472, 474). Defendant was found in both spatial and
temporal proximity to the crime scene, and in possession of the items
stolen from the victim (see Goree, 309 AD2d at 1204). We therefore
conclude that the verdict is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495).

     We reject defendant’s further contentions that the People
deprived him of his right to present a defense by failing to secure a
purported surveillance video from the bar outside of which the robbery
occurred, and that County Court erred in denying his request for an
adverse inference instruction with respect to that failure. We note
that defendant failed to preserve for our review his contention that
he was denied the right to present a defense because “[he] did not
raise th[at] constitutional claim[] in the trial court” (People v
Lane, 7 NY3d 888, 889; see People v Norcutt, 115 AD3d 1306, 1309, lv
denied 23 NY3d 966), and we decline to exercise our power to review
defendant’s contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). We conclude that the court properly
denied defendant’s request for an adverse inference instruction with
respect to the purported surveillance video. Although the People
would have a duty to protect such a video from being destroyed if it
were in their possession (see generally People v Handy, 20 NY3d 663,
668-669), the record fails to establish that either the police or the
People had possession of any such video (see generally People v
Nelson, 90 AD3d 954, 954, lv denied 18 NY3d 996). Moreover, the
People have no duty to seek evidence for defendant’s benefit or to
protect evidence prior to their possession of it (see People v Hayes,
17 NY3d 46, 51, cert denied ___ US ___, 132 S Ct 844; People v James,
93 NY2d 620, 644; People v Hernandez, 107 AD3d 504, 505, lv denied 22
NY3d 1199).

     We reject defendant’s further contention in his pro se
supplemental brief that the court erred in denying his request for a
missing witness charge with respect to the People’s failure to call
the codefendant in this case. Defendant made a prima facie showing
that he was entitled to a missing witness charge (see generally People
v Hall, 18 NY3d 122, 131; People v Savinon, 100 NY2d 192, 196-197;
People v Gonzalez, 68 NY2d 424, 427). The burden then shifted to the
People to show that the charge was inappropriate, and we conclude that
they met that burden (see generally People v Keen, 94 NY2d 533, 539).
Although the codefendant was available to the People inasmuch as he
pleaded guilty in connection with this case and entered into a
cooperation agreement with the People to assist in other unrelated
criminal matters, the People established that he was not in their
control for purposes of defendant’s prosecution (see generally
Gonzalez, 68 NY2d at 428-429; People v Onyia, 70 AD3d 1202, 1205;
People v Hilts, 191 AD2d 779, 780-781, lv denied 81 NY2d 1074).
Moreover, there is no guarantee that the codefendant would have
provided testimony favorable to the People and, indeed, we conclude
that the codefendant’s testimony would have been “presumptively
suspect . . . or subject to impeachment detrimental to the People’s
case” (People v Parton, 26 AD3d 868, 869, lv denied 7 NY3d 760
[internal quotation marks omitted]; see People v McLaurin, 27 AD3d
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                                                         KA 12-01731

1117, 1118, lv denied 7 NY3d 759).

     Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
