Opinion
October 20, 1994
Appeal from the Supreme Court, Bronx County (Daniel Sullivan, J.).
Viewing the evidence in the light most favorable to the People, as we must (People v. Acosta, 80 N.Y.2d 665, 672), we find that the evidence was sufficient to establish defendant's guilt beyond a reasonable doubt.
Contrary to defendant's contention, destruction of 911 tapes, in the course of routine police procedure, does not have Rosario consequences when it does not prejudice defendant (People v. Hyde, 172 A.D.2d 305, lv denied 78 N.Y.2d 1077). Nevertheless, the court instructed the jury in in limine, as well as during final instructions, that the jury could consider the absence of a 911 tape in evaluating the testimony of the People's witnesses. Thus, the court did provide a sanction, albeit not the sanction requested by defendant (compare, People v. Schoolfield, 196 A.D.2d 111, lv denied 83 N.Y.2d 915). Since the nature of the sanction is committed to the trial court's sound discretion (People v. Martinez, 71 N.Y.2d 937, 940), and the jury could have evaluated the appropriate rules on the basis of the entire charge (People v. Alvarez, 198 A.D.2d 171, lv denied 83 N.Y.2d 802), reversal is not warranted.
We have considered defendant's remaining contentions and find them without merit.
Concur — Carro, J.P., Wallach, Kupferman, Ross and Williams, JJ.