People v. Borders

163 A.D.2d 852, 558 N.Y.S.2d 767, 1990 N.Y. App. Div. LEXIS 9535

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1990
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant has not shown any prejudice resulting from the failure of the police to follow the written notice requirements of Penal Law § 450.10 (1) prior to releasing the stolen property to its owners. Noncompliance alone is insufficient to require reversal (see, Penal Law § 450.10 [10]) particularly where, as here, defendant did not request permission to examine the property prior to trial (see, People v Welsh, 124 AD2d 301, 304) and did not suffer prejudice or establish that the statutory violation was intentional or in bad faith (see, People v Angelo, 93 AD2d 264, 268). The radio and dictaphone were properly received in evidence because these items were not fungible and were identified at trial by serial numbers (see, People v Washington, 96 AD2d 996, 997). Defendant’s claims of prosecutorial misconduct in summation were not preserved for review and do not require reversal in any event. On this record defendant’s sentence is not excessive. (Appeal from judgment of Erie County Court, D’Amico, J.— burglary, third degree.) Present—Callahan, J. P., Denman, Green, Balio and Lowery, JJ.