As the People acknowledge, in the Fourth Department, where defendants Favor and Smith were tried, there were no pre-1991 reported Appellate Division decisions sanctioning such a procedure. A similar situation existed in the First Department, which first addressed the issue in December of 1990 (People v Lee, 168 A.D.2d 267) and then, in the three successive cases raising the issue, reached inconclusive results (compare, People v Rose, 175 A.D.2d 32, affd 80 N.Y.2d 802; with People v Jordan, 174 A.D.2d 490; and People v Cruz, 179 A.D.2d 529, revd 81 N.Y.2d 738, supra). The Second Department also demonstrated some uncertainty about the correct resolution of the issue (compare, People v Scott, 163 A.D.2d 341; and People v Jenkins, 157 A.D.2d 854; with People vPeterson, 151 A.D.2d 512; People v Dokes, 173 A.D.2d 724, revd 79 N.Y.2d 656, supra; People v Floyd, 179 A.D.2d 770; People v Ray, 184 A.D.2d 596; People v Gebrosky, 181 A.D.2d 692, revd 80 N.Y.2d 995, supra).
When a police officer's memo book is lost because of lack of due care, a trial court must impose some sanction if the defendant was prejudiced ( People v Wallace, 76 NY2d 953; People v Martinez, 71 NY2d 937). A defendant is by definition prejudiced when identification is an issue in the case and the memo book "would have been helpful to [him] in cross-examining * * * officers" ( People v Wallace, supra, at 955; see, e.g., People v Butler, 192 AD2d 1126). Further, it must be noted that the officer failed to exercise due care to preserve his memo book ( see, People v Boyd, 189 AD2d 433; People v Cruz, 179 AD2d 529, revd on other grounds 81 NY2d 738; People v Hyde, 172 AD2d 305). In circumstances of this sort, the loss of a memo book cannot be excused on the ground that a so-called "85-A report" contains the "duplicative equivalent" of the missing writings ( see, e.g., People v Joseph, 86 NY2d 565; People v Butler, supra).
It cannot be denied that identification was a significant issue in this case, and that the two officers' missing scratch notes would have been helpful to the defendant in his cross-examination of the police officers (see, e.g., People v Butler, 192 A.D.2d 1126). While we conclude that Officers Marino and Manning failed to exercise due care to preserve their initial "scratch" reports, if they had any explanation for the loss of these notes, they were foreclosed from presenting it when the court sustained the prosecutor's objection to defense counsel's inquiry into the matter (cf., People v Boyd, 189 A.D.2d 433; People v Cruz, 179 A.D.2d 529, revd on other grounds 81 N.Y.2d 738; People v Hyde, 172 A.D.2d 305). Moreover, under these circumstances, the loss of "scratch" notes cannot be excused on the ground that the final, typed report is the duplicative equivalent of the missing writings (see, e.g., People v Joseph, 86 N.Y.2d 565; People v Butler, supra). Finally, the defense counsel demanded the reasonable remedy of an adverse inference charge after his original request for a mistrial was denied (cf.
Under the circumstances of this case, where the only remedy demanded by defendant was the declaration of an immediate mistrial after the close of evidence, it was not an abuse of discretion to deny such a drastic remedy (People v. Rice, 75 N.Y.2d 929, 932-933). The failure to preserve the scratch copy of the complaint report results neither from inadvertence on the part of the prosecution nor in prejudice to defendant (see, People v. Martinez, supra) and, in any event, declaration of a mistrial, as demanded by defendant, is unwarranted (People v Cruz, 179 A.D.2d 529, revd on other grounds 81 N.Y.2d 738). III. PHOTOGRAPHIC IDENTIFICATION
Defendant's claim that he is entitled to a new trial because the court failed to impose sanctions upon the People for the undercover officer's destruction of the envelope is unpreserved for appellate review, and we decline to reach the issue in the interest of justice. In any event, defendant's identification was clearly established since involved here was a face-to-face drug sale after which the undercover officer made an immediate drive-by confirmatory identification (People v. Cruz, 179 A.D.2d 529, revd on other grounds 81 N.Y.2d 738). Further, defense counsel elicited from the undercover officer information regarding the description of defendant contained in the arrest report and the envelope.
Defendant was identified by the complainant and his cousin as the one who robbed him of his jewelry at gunpoint. Additional testimony by the police officer which was claimed by the defendant to be improper bolstering is deemed harmless (People v Cruz, 179 A.D.2d 529, 530, revd on other grounds 81 N.Y.2d 738) and, in any event, the issue has not been preserved as a matter of law for appeal (People v. Russell, 71 N.Y.2d 1016). Defendant's remaining claims are also unpreserved, and were we to review them in the interest of justice, they would not warrant reversal, given the overwhelming evidence of guilt. Concur — Murphy, P.J., Sullivan, Rosenberger, Asch and Rubin, JJ.