SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

440 

KA 10-00813 

PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MARK J. DAVIS, DEFENDANT-APPELLANT. 

 

LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT. 

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (COURTNEY E. PETTIT OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oswego County Court (Walter W.

Hafner, Jr., J.), rendered May 18, 2009. The judgment convicted

defendant, upon a jury verdict, of driving while intoxicated, a class

D felony, and aggravated unlicensed operation of a motor vehicle in

the first degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On a prior appeal, we affirmed the judgment

convicting defendant upon a jury verdict of, inter alia, felony

driving while intoxicated (Vehicle and Traffic Law §§ 1192 [3]; 1193

[1] [c] [ii]; People v Davis, 91 AD3d 1273). We subsequently granted

defendant’s motion for a writ of error coram nobis on the ground that

appellate counsel had failed to raise an issue on appeal that may have

merit, i.e., that County Court erred when it allegedly failed to

comply with CPL 310.30 in regard to court exhibit #4 (People v Davis,

96 AD3d 1512), and we vacated our prior order. We now consider the

appeal de novo.

Contrary to the contention of defendant, the court complied with

CPL 310.30 in regard to court exhibit #4. The supplemental transcript

that was submitted by the People with their brief establishes that the

court provided meaningful notice to the parties of the contents of the

jury note and provided a meaningful response thereto (see generally

People v Kadarko, 14 NY3d 426, 429; People v O’Rama, 78 NY2d 270, 276-

277). We reject defendant’s contention that we should not rely upon

the supplemental transcript because it was not part of the original

record on appeal. The supplemental transcript was certified by the

court reporter as being an accurate transcript from the final day of

the trial, and was “recertified” by her with respect to court exhibit

#4 and the colloquy relating thereto, “which was inadvertently omitted

from the original transcript.” The parties stipulated that
-2- 440 

KA 10-00813 

transcripts of the jury trial would be submitted to this Court, and

the supplemental transcript thus falls within that stipulation. 

Moreover, according to our rules, “[i]n a criminal matter, the failure

of the parties or their attorneys to list in the stipulation to the

record on appeal any transcript, exhibit or other document that

constituted a part of the underlying prosecution shall not preclude

the [C]ourt from considering such transcript, exhibit or other

document in determining the appeal” (22 NYCRR 1000.4 [a] [1] [iii]). 

We may therefore consider the supplemental transcript attached to the

People’s brief pursuant to that rule.

Defendant failed to preserve for our review his contention that

the court violated CPL 270.15 (2) in conducting the jury selection

(see generally People v Hayes, 71 AD3d 1477, 1477, lv denied 15 NY3d

751; People v Dickens, 48 AD3d 1034, 1034, lv denied 10 NY3d 958), and

we decline to exercise our power to review that contention as a matter

of discretion in the interest of justice (see CPL 470.15 [6] [a]). We

reject defendant’s further contention that he was denied effective

assistance of counsel based on defense counsel’s failure to preserve

for our review the contention regarding the court’s alleged violation

of CPL 270.15 (2) (see People v Madera, 103 AD3d 1197, 1200). 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 reject defendant’s

contention that the verdict is against the weight of the evidence (see

generally People v Bleakley, 69 NY2d 490, 495).

Defendant contends that the court erred in denying his motion in

limine concerning the People’s alleged spoliation of evidence, i.e., a

whiskey bottle and a prescription bottle of hydrocodone. We reject

that contention. A police officer observed a one-half to threequarter full whiskey bottle in the center of the front seat of

defendant’s vehicle when he was pulled over, and the officer left the

whiskey bottle in the vehicle without touching it. After defendant

was arrested, the officer found a prescription medication bottle

containing hydrocodone on defendant’s person, which was returned to

him. Inasmuch as the police never lost or destroyed any evidence,

there was no spoliation (see generally People v Haupt, 71 NY2d 929,

931).

Entered: May 3, 2013 Frances E. Cafarell

Clerk of the Court