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

413
KA 08-00025
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAYSHAWN P. HANDY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (ELIZABETH CLIFFORD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered October 18, 2007. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of assault in the second degree (Penal Law § 120.05 [7]),
defendant contends that County Court erred in denying his request for
an adverse inference charge concerning the failure of the People to
preserve an alleged videotape of the assault. Contrary to defendant’s
contention, an adverse inference charge was not warranted inasmuch as
defendant failed to establish that the alleged videotape was
discoverable evidence that the People were required to preserve (see
People v James, 93 NY2d 620, 644; People v Kelly, 62 NY2d 516, 520).
There is no support in the record for defendant’s assertion that the
alleged videotape was exculpatory and thus his contention that the
alleged videotape was Brady material is merely speculative (see People
v Ross, 282 AD2d 929, 931, lv denied 96 NY2d 907; People v
Scattareggia, 152 AD2d 679, 679-680).

     Contrary to defendant’s further contention, the evidence, viewed
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), is legally sufficient to establish that defendant
intended to cause injury to another person (see Penal Law § 120.05
[7]; People v Cooper, 50 AD3d 1570, lv denied 10 NY3d 957; People v
Amin, 294 AD2d 863, lv denied 98 NY2d 672, 674; see generally People v
Bleakley, 69 NY2d 490, 495). Further, viewing the evidence in light
of the elements of the crime of assault in the second degree as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
                                 -2-                            413
                                                          KA 08-00025

(see generally Bleakley, 69 NY2d at 495).   Finally, the sentence is
not unduly harsh or severe.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
