Opinion
March 16, 1993
Appeal from the Supreme Court, Bronx County (Ivan Warner, J.).
Defendant was arrested in a buy-and-bust operation after having sold vials of crack to an undercover officer. Defendant challenges the People's failure to disclose an arrest photo which had actually not been in the People's possession, but was part of the court file. Defendant failed to preserve State or Federal constitutional claims (People v. Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914). Since the photo had not been in the People's possession, and the court file was a public record, we reject defendant's statutory claim (People v. Bonet, 176 A.D.2d 641, 643, lv denied 79 N.Y.2d 853; People v. Maddox, 166 A.D.2d 375, lv denied 77 N.Y.2d 841). The court's instruction that the buy money was not an element of the crime and that the fact it was not recovered in no way lessens the culpability of defendant for the sale of narcotics, was not error. The court previously had instructed the jury that in determining reasonable doubt they could consider the available evidence or lack of evidence. We do not find this instruction to be unbalanced (compare, People v Watkins, 157 A.D.2d 301). Most of defendant's remaining claims are unpreserved for review. All are meritless.
Concur — Milonas, J.P., Ellerin, Ross, Kassal and Rubin, JJ.