Opinion
October 16, 1995
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed.
The sanction imposed upon the People for loss of Rosario material was not, under the circumstances presented, an improvident exercise of the court's discretion (see, People v Gibbs, 85 N.Y.2d 899; People v. Martinez, 71 N.Y.2d 937, 940; see also, People v. Matarrese, 184 A.D.2d 591; People v. Franco, 189 A.D.2d 589, 590).
The trial court's supplemental instructions on constructive possession are problematic because the trial court used an example with facts which were similar to the People's theory of the facts in the instant case (see, People v. Hommel, 41 N.Y.2d 427, 430). However, the trial court also used an alternative hypothetical and the instructions, read as a whole, were a fair and correct statement of the law. Thus, any prejudice was "adequately dissipated" ( People v. Johnson, 171 A.D.2d 532, 533).
The defendant's remaining contentions are either unpreserved for appellate review (CPL 470.05), or without merit. Thompson, J.P., Copertino, Hart and Goldstein, JJ., concur.