Opinion
March 14, 1994
Appeal from the County Court, Westchester County (Nicolai, J.).
Ordered that the judgments are modified, as a matter of discretion in the interest of justice, to provide that all terms of imprisonment shall run concurrently; as so modified, the judgments are affirmed.
Viewing the evidence, in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant's Rosario claims regarding a dictaphone tape have not been preserved for appellate review since the defense counsel failed to object, seek sanctions, or move for a mistrial upon learning of the existence of the tape and its possible destruction (see, People v. Rogelio, 79 N.Y.2d 843, 844; People v Rivera, 78 N.Y.2d 901, 902-903; People v. Jackson, 78 N.Y.2d 900, 901; People v. Sheppard, 185 A.D.2d 904, 905; People v. Merchant, 171 A.D.2d 887; People v. Provenzano, 154 A.D.2d 486). The trial court was not required to impose sanctions, sua sponte (see, People v. Best, 145 A.D.2d 499). Moreover, we decline to reach this issue in the exercise of our interest of justice jurisdiction since there is no evidence of bad faith on the part of the prosecution (see, People v. Rice, 75 N.Y.2d 929, 932; People v Diggs, 185 A.D.2d 990; People v. Hyde, 172 A.D.2d 305).
Contrary to the defendant's contention, the People properly established a chain of custody for the admission of drugs into evidence (see, People v. Julian, 41 N.Y.2d 340, 342-343; People v Newman, 129 A.D.2d 742). The trial court's alibi charge did not shift the burden of proof away from the prosecution (see, People v. Wintje, 68 N.Y.2d 637). Review of the record reveals that the defendant received the meaningful representation of counsel (see, People v. Baldi, 54 N.Y.2d 137, 146-147).
The defendant's sentence was excessive to the extent indicated herein.
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05; People v. Medina, 53 N.Y.2d 951; People v. Johnson, 154 A.D.2d 618), or without merit. Rosenblatt, J.P., Ritter, Pizzuto and Altman, JJ., concur.