Opinion
5837.
April 12, 2005.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered December 1, 2003, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2½ to 5 years, unanimously affirmed.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Gregory H. Mansfield of counsel), for respondent.
Before: Tom, J.P., Marlow, Sullivan, Nardelli and Williams, JJ.
The court's jury instruction concerning the effect of lack of evidence, taken as a whole and in context of the court's instructions, was sufficiently balanced and did not undermine defendant's defense ( see People v. Jiovani, 258 AD2d 277, lv denied 93 NY2d 900; see also People v. Lilly, 264 AD2d 684, lv denied 94 NY2d 825; People v. Kramer, 240 AD2d 204, lv denied 91 NY2d 875).
The court provided a meaningful response when it correctly advised the deliberating jury that a matter it appeared to be raising in its note presented no factual question for the jury to resolve ( see People v. Malloy, 55 NY2d 296, cert denied 459 US 847). In any event, the instruction could not have caused any prejudice to defendant ( see People v. Wright, 270 AD2d 176, lv denied 94 NY2d 954).
The court properly exercised its discretion in refusing to issue an adverse inference instruction regarding the inadvertent loss of property recovered from defendant ( see People v. Kelly, 62 NY2d 516). The item in question was irrelevant and there was no bad faith on the part of the prosecution or prejudice to defendant.