Opinion
May 31, 1996
Appeal from the Monroe County Court, Egan, J.
Present — Denman, P.J., Pine, Fallon, Wesley and Balio, JJ.
Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that County Court erred in denying his request to impose sanctions on the People at trial for failing to preserve a 911 tape. Although the court erred in ruling that the tape does not constitute Rosario material ( see, CPL 240.45 [a]), sanctions were not required because the tape was destroyed pursuant to routine police procedure before defendant requested it ( see, People v. Diggs, 185 A.D.2d 990; cf., People v. Parker, 157 A.D.2d 519, lv denied 76 N.Y.2d 793). Moreover, defendant was not prejudiced by the destruction of the tape ( see, People v. Segui, 208 A.D.2d 447, lv denied 84 N.Y.2d 1038; People v. Hyde, 172 A.D.2d 305, lv denied 78 N.Y.2d 1077). The witness whose call was recorded did not identify defendant at trial and did not contradict the testimony of defendant, who admitted that he was at the crime scene.
We further conclude that the court did not err in instructing the jury on the elements of grand larceny in the fourth degree (Penal Law § 155.30 [stealing property consisting of a credit card]). Knowledge that a credit card is included in property that has been stolen is not a necessary element of that crime ( see, People v. Mitchell, 77 N.Y.2d 624, 628-629). Finally, defendant contends that the prosecutor violated the court's Sandoval ruling. Defendant failed to object to the court's curative instruction and, thus, that contention is unpreserved for our review ( see, People v. D'Alessandro, 184 A.D.2d 114, 118, lv denied 81 N.Y.2d 884, citing People v. Comer, 73 N.Y.2d 955, 957). In any event, that contention is without merit.