People v. Rodriguez

187 A.D.2d 291, 589 N.Y.S.2d 873, 1992 N.Y. App. Div. LEXIS 12808

Opinion

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered August 4, 1989, convicting defendant, after a jury trial, of criminal sale and two counts of criminal possession of a controlled substance in the third degree, and sentencing her, as a second felony offender, to concurrent terms of 4Vz to 9 years imprisonment, unanimously reversed, on the law, and the matter is remanded for a new trial.

The conviction on appeal arises from an alleged $20 street sale of cocaine and defendant’s possession of additional contraband following her arrest. The People properly concede that there must be a new trial on the sale count of the indictment because the original arrest notes of both the undercover and the backup officers were destroyed prior to trial, and because the trial court’s error in rejecting the imposition of any Rosario sanction, despite defendant’s request for an adverse inference charge, was fully preserved (People v Wallace, 76 NY2d 953; People v Geathers, 172 AD2d 134, lv denied 79 NY2d 1049).

Although the People urge that only defendant’s identification was at issue, and that the conviction upon the possession counts should therefore be affirmed, we note that defendant’s proofs presented the claim that her arrest was a police blunder, compounded when they planted cocaine in her bag to fabricate a case. Thus, the defense to each of the charges is inextricably intertwined, and there must be a new trial on the entire indictment (cf., People v [Stanley] Davis, 173 AD2d 634, lv denied 78 NY2d 964).

Defendant has failed to present an adequate record for us to review her contention that she was denied a speedy trial under CPL 30.30 (People v Olivo, 52 NY2d 309, 320; People v Bagarozy, 182 AD2d 565, lv denied 80 NY2d 901; People v Clendinen, 173 AD2d 366, lv denied 80 NY2d 895). Upon review of the record before us, we find the claim to have been unpreserved, and abandoned when defendant proceeded to trial (People v Rodriguez, 50 NY2d 553). Concur—Ellerin, J. P., Wallach, Ross and Kassal, JJ.