Opinion
February 27, 1989
Appeal from the County Court, Rockland County (Nelson, J.).
Ordered that the judgment is affirmed.
The defendant argues that certain items of physical evidence should not have been admitted during trial. Admissibility of a fungible item of evidence "generally requires that all those who have handled the item `identify it and testify to its custody and unchanged condition'" (People v Connelly, 35 N.Y.2d 171, 174, quoting People v Sansalone, 208 Misc. 491, 493; People v Julian, 41 N.Y.2d 340, 343). However, deficiencies in the chain of custody go to the weight of the evidence, not its admissibility, provided that the two basic requirements of proof of identity and unchanged condition are met (see, People v Donovan, 141 A.D.2d 835; People v Piazza, 121 A.D.2d 573). In this case, the People established an uninterrupted chain of custody with respect to the "motility washing" taken from the victim on the date of the incident. The record establishes, moreover, that the emergency room nurse's initials were on the pap smear slides introduced at trial. Additionally, the pap smear was identified with the victim's name and a number, prior to analysis. Thus, the identity of the evidence and its unchanged condition were sufficiently proven, and the evidence was properly admitted.
Nor was the defendant denied a fair trial by the People's failure to preserve the semen stains on the victim's panties (see, e.g., Arizona v Youngblood, 488 US ___, 109 S Ct 333). "[T]he determination of an appropriate sanction [for failure to preserve evidence] should be made on a case-by-case basis, and an assessment should be made `of the government's culpability for the loss, together with a realistic appraisal of its significance when viewed in light of its nature, its bearing upon critical issues in the case and the strength of the government's untainted proof'" (People v Haupt, 128 A.D.2d 172, 175, affd 71 N.Y.2d 929, quoting United States v Grammatikos, 633 F.2d 1013, 1020). In the instant case the record lacks any evidence of bad faith on the part of the People (see, Arizona v Youngblood, supra; People v Caple, 106 A.D.2d 511). Moreover, the exculpatory value of the evidence was entirely speculative (see, California v Trombetta, 467 U.S. 479; People v Caple, supra). Thus it cannot be said that the admission of this evidence was an improvident exercise of discretion by the trial court. We further note that the People's case was overwhelming, even without this evidence (see, People v Pasciuta, 104 A.D.2d 1010).
We have considered the defendant's remaining claims, including those raised in his supplemental pro se brief, and find them to be unpreserved or without merit. Thompson, J.P., Rubin, Spatt and Balletta, JJ., concur.