Opinion
May 6, 1999
Appeal from the Supreme Court, New York County (Felice Shea, J.).
Defendant's claim that the People failed to prove beyond a reasonable doubt that he caused physical injury to the complainant is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that there was ample subjective and objective evidence of physical injury ( see, People v. Spry, 232 A.D.2d 232, lv denied 89 N.Y.2d 930). Moreover, the verdict was not against the weight of the evidence.
The court properly exercised its discretion in denying defendant's application for an adverse inference charge regarding a destroyed 911 tape. Defendant did not request the tape until more than a month after his arrest, and by that time it had already been destroyed by the Police Department in the course of routine procedure upon the expiration of the standard 90-day period following the underlying incident. Since there was no bad faith or lack of diligence on behalf of the People, or prejudice to defendant, no sanction was required ( People v. Hyde, 172 A.D.2d 305, lv denied 78 N.Y.2d 1077).
Concur — Williams, J. P., Rubin, Mazzarelli, Andrias and Buckley, JJ.