People v. Harris

May 16, 2006
Versions:29 A.D.3d 387
813 N.Y.S.2d 904

Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered June 24, 2004, convicting defendant, after a jury trial, of burglary in the second degree (two counts), robbery in the third degree and escape in the third degree, and sentencing him, as a second violent felony offender, to consecutive terms of 15 years and 12 years for the burglary convictions, concurrent with concurrent terms of 31/2 to 7 years and 1 year, unanimously affirmed.

Defendant‘s argument that the court should have instructed the jury not to commingle the evidence of the two incidents, and his challenge to the adequacy of the court‘s adverse inference charge with respect to the loss of a lineup report are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the charge made it sufficiently clear to the jury that the evidence as to each incident was to be considered separately (see People v Gutierrez, 304 AD2d 458 [2003]), and that the language employed in the adverse inference charge was appropriate (see People v Gibbs, 207 AD2d 288 [1994], affd 85 NY2d 899 [1995]).

We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Marlow, Sullivan, Gonzalez and Malone, JJ.