People v. Torres

197 A.D.2d 488, 603 N.Y.S.2d 11, 1993 N.Y. App. Div. LEXIS 10070

Opinion

—Judgment, Supreme, Bronx County (Joseph Fisch, J.), rendered November 13, 1991, convicting defendant, after a jury trial, of two counts of assault in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

Inasmuch as defendant was given advance notice that the last page of the incident report was missing, and the Correction Captain who had prepared the report was questioned about the disappearance of the page at both the pretrial hearing and the trial, defendant has not established that he was prejudiced by the failure to preserve the entire report (see, People v Morton, 189 AD2d 488, 492-493). Accordingly, the trial court did not err in refusing to charge that a negative inference could be drawn because of this "missing evidence” (see generally, People v Banch, 80 NY2d 610, 616). Concur—Wallach, J. P., Ross, Asch and Rubin, JJ.