People v. Segui

208 A.D.2d 447, 617 N.Y.S.2d 718, 1994 N.Y. App. Div. LEXIS 9783

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Daniel Sullivan, J.), rendered July 1, 1992, convicting defendant, after a jury trial, of criminal possession of stolen property in the fourth degree, and sentencing him to a term of 2 to 4 years, unanimously affirmed.

Viewing the evidence in the light most favorable to the People, as we must (People v Acosta, 80 NY2d 665, 672), we find that the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt.

Contrary to defendant’s contention, destruction of 911 tapes, in the course of routine police procedure, does not have Rosario consequences when it does not prejudice defendant (People v Hyde, 172 AD2d 305, lv denied 78 NY2d 1077). Nevertheless, the court instructed the jury in in limine, as well as during final instructions, that the jury could consider the absence of a 911 tape in evaluating the testimony of the People’s witnesses. Thus, the court did provide a sanction, albeit not the sanction requested by defendant (compare, People v Schoolfield, 196 AD2d 111, lv denied 83 NY2d 915). Since the nature of the sanction is committed to the trial court’s sound discretion (People v Martinez, 71 NY2d 937, 940), and the jury could have evaluated the appropriate rules on the basis of the entire charge (People v Alvarez, 198 AD2d 171, lv denied 83 NY2d 802), reversal is not warranted.

We have considered defendant’s remaining contentions and find them without merit. Concur—Carro, J. P., Wallach, Kupferman, Ross and Williams, JJ.