People v. Cierra

178 A.D.2d 303, 577 N.Y.S.2d 607, 1991 N.Y. App. Div. LEXIS 16564

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 1991
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Bernard Jackson, J.), rendered October 25, 1989, convicting defendant after jury trial of criminal sale of a controlled substance in the third degree, and sentencing him as a second felony offender to a term of imprisonment of from 9 to 18 years, unanimously affirmed.

Defendant’s sole contention on appeal is that the trial court should have imposed sanctions on the People for the destruction of the scratch notes by the arresting officer, that the undercover and arresting officers created during this buy-and-bust operation. However, during the charging conference, counsel only requested an adverse inference instruction because of the People’s failure to preserve materials that were relevant to the chain of custody and did not at that time raise a Rosario claim. The issue is therefore unpreserved (see, People v Saunders, 160 AD2d 392, lv denied 76 NY2d 796), and we decline to review it. Were we to review the issue in the interest of justice, we would note that trial counsel never developed an adequate record concerning the specific details that purportedly were memorialized but destroyed. Concur— Sullivan, J. P., Wallach, Kupferman, Asch and Kassal, JJ.