Opinion
June 27, 1995
Appeal from the Supreme Court, Bronx County (Frank Torres, J.).
Defendant was not entitled to an adverse inference charge concerning allegedly lost or destroyed Rosario material, having established no more than a mere possibility that such material, consisting of police notes, ever existed in the first place ( People v. Damaceno, 214 A.D.2d 464). As to defendant's claim that uncharged sales were improperly admitted, we would find that these contemporaneous sales were admissible to prove identity (vis-a-vis opportunity to observe), to complete the narrative, and to explain why the police targeted defendant ( People v Alexander, 215 A.D.2d 116), and that, unlike drug sales in cases where drug selling is not even charged ( e.g., People v. Jackson, 174 A.D.2d 552), or uncharged drug sales that are not contemporaneous with drug selling that is charged, carried relatively little suggestion of general criminal propensity. We find that defendant waived his right to a limiting instruction concerning the uncharged sales. The court never refused defense counsel's initial request for such an instruction, but instead urged reconsideration of the request, which the court considered unwise as drawing undue attention to the uncharged sales. Since defense counsel's response to the court's recommendation was equivocal at best, defendant's failure to except to the court's charge indicates, under all the circumstances, abandonment of the request ( see, People v. Whalen, 59 N.Y.2d 273, 280).
Concur — Sullivan, J.P., Rosenberger, Kupferman, Ross and Williams, JJ.