Opinion
2004-03689.
March 14, 2006.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered April 13, 2004, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. and Arnold Porter, New York, N.Y. (Jonathan N. Francis of counsel), for appellant (one brief filed).
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, and Morgan Lewis Bockius, LLP [Edward S. Hornstein] of counsel), for respondent.
Before: Schmidt, J.P., Crane, Rivera and Spolzino, JJ., concur.
Ordered that the judgment is affirmed.
The Supreme Court properly declined to preclude testimony or deliver an adverse inference charge with regard to a cell phone that the police had returned to a complainant, in violation of Penal Law § 450.10 (1), shortly after the defendant's arrest. The cell phone had little or no value to the defense, the police did not return it to the complainant in bad faith, and the defense counsel was fully able to pursue the matter on cross-examination and summation ( see People v. Kelly, 62 NY2d 516, 520-521).
The sentence imposed was not excessive ( see People v. Suitte, 90 AD2d 80).
The defendant's remaining contention is unpreserved for appellate review and, in any event, is without merit.