Opinion
February 27, 1987
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Doerr, J.P., Denman, Boomer, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of rape in the first degree (Penal Law § 130.35) and unlawful imprisonment in the first degree (Penal Law § 135.10). On appeal defendant contends that the destruction by the police of certain exculpatory physical evidence seized from his room denied him a fair trial (Brady v Maryland, 373 U.S. 83). We disagree. The destruction of evidence occurred only after this indictment was dismissed by the trial court, but prior to its reinstatement by this court (People v LaBounty, 104 A.D.2d 202). The exculpatory potential of this evidence being purely speculative, its destruction by the police does not violate the Brady rule (People v. Briggs, 81 A.D.2d 1017). No constitutional error occurred as there was no reasonable probability that, had the evidence been provided to the defense, the results of the trial would have been different (People v. Chin, 67 N.Y.2d 22, 33). Defendant also asserts that the trial court should have granted his motion to dismiss the indictment because he was denied his statutory right to testify before the Grand Jury. Having waited approximately four months after the indictment was reinstated before making this motion, defendant has waived his objection (CPL 190.50 [c]; People v Reddy, 108 A.D.2d 945, 946). Further, the prosecutor had no duty to inform the defendant of his right to testify before the Grand Jury, as he was not arraigned in a local criminal court upon the complaint (CPL 190.50 [a]). Defendant also has failed to provide a proper affidavit of service or other credible proof that he gave written notice to the District Attorney's office of his desire to testify before the Grand Jury. Defendant further contends he was denied a fair trial by the prosecutor's misconduct in his summation and by the court's charge. No objection having been raised to any of these alleged errors, they have not been preserved for our review as a matter of law and reversal is not required in the interests of justice (see, e.g., People v. Dawson, 50 N.Y.2d 311, 324; People v. Thomas, 50 N.Y.2d 467).
We have examined defendant's remaining contentions and find them to be without merit.