Opinion
385
March 5, 2002.
Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered September 8, 1999, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing her to concurrent terms of 5 to 10 years, unanimously affirmed.
Vincent Rivellese for respondent.
Stephen M. Juris for defendant-appellant.
Before: Mazzarelli, J.P., Ellerin, Lerner, Rubin, Marlow, JJ.
Defendant's suppression motion was properly denied. Based on the evidence adduced at the hearing, the court properly found that a key case was recovered from defendant pursuant to a search incident to a lawful arrest, and that the police were permitted to open the key case since it had not yet been reduced to their exclusive control (People v. Wylie, 244 A.D.2d 247, lv denied 91 N.Y.2d 946).
The court properly refused defendant's request for an adverse inference charge based on the loss of a prisoner property receipt which pertained to an individual who was arrested with defendant. Assuming, arguendo, that the receipt could be considered Rosario material, defendant never established that she was prejudiced by its loss or destruction (see,People v. Banch, 80 N.Y.2d 610, 616), and there is no "reasonable possibility that the non-disclosure materially contributed to the result of the trial. . . ." (CPL 240.75).
Defendant was not deprived of a fair trial by the court's references to the trial's brevity, assuring the prospective jurors that their service would not be burdensome. The court referred only to the duration of the trial, and defendant's argument that the jury could have construed the court's remarks as expressing an opinion that the case would be easy to decide rests on speculation. While many of the court's remarks would have been better left unsaid, any potential prejudice was cured by the court's instructions, which the jury is presumed to have followed (see, People v. Davis, 58 N.Y.2d 1102).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.