It is well settled that "nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice" ( People v. Martinez , 22 N.Y.3d 551, 567, 983 N.Y.S.2d 468, 6 N.E.3d 586 [2014] ; seeJoseph , 86 N.Y.2d at 570-571, 635 N.Y.S.2d 123, 658 N.E.2d 996 ; Martinez , 71 N.Y.2d at 940, 528 N.Y.S.2d 813, 524 N.E.2d 134 ). Under the circumstances of this case, we discern no prejudice from the destruction of the recordings of the radio transmissions between the officers (seeSmith , 235 A.D.2d at 641, 652 N.Y.S.2d 343 ; People v. Torres , 179 A.D.2d 696, 697, 578 N.Y.S.2d 262 [2d Dept. 1992], lv denied 79 N.Y.2d 1008, 584 N.Y.S.2d 463, 594 N.E.2d 957 [1992] ; People v. Hyde , 172 A.D.2d 305, 306, 568 N.Y.S.2d 388 [1st Dept. 1991], lv denied 78 N.Y.2d 1077, 577 N.Y.S.2d 240, 583 N.E.2d 952 [1991] ; cf.People v. Viruet , 29 N.Y.3d 527, 533, 59 N.Y.S.3d 294, 81 N.E.3d 828 [2017] ). Defendant further contends that the identification testimony of two police officers should have been precluded because he received no CPL 710.30 notice related to their prior identification of him and the court granted his motion to preclude "identification ... evidence of which the People failed to give notice."

The defendant's contention that the Supreme Court erroneously admitted, at trial, evidence of his change in hairstyle is unpreserved for appellate review ( see People v Gray, 86 NY2d 10, 19). In any event, the Supreme Court providently exercised its discretion in admitting this evidence as proof that the defendant was conscious of his own guilt ( see People v Reade, 13 NY2d 42, 46; People v Torres, 179 AD2d 696, 696-697). Contrary to the defendant's contention, there was a sufficient factual predicate to support a jury instruction on consciousness of guilt ( see People v Robinson, 10 AD3d 696). The defendant's contention that the Supreme Court erred in the actual wording of the jury instruction is unpreserved for appellate review ( see People v Wady, 220 AD2d 631) and, in any event, is without merit ( see People v Solimini, 69 AD3d 657, 658).

Thus, the error was harmless beyond a reasonable doubt ( see People v Crimmins, 36 NY2d 230, 237). We further find that the Supreme Court did not improvidently exercise its discretion in admitting evidence concerning the defendant's gang affiliation, a hand gesture he made during a jail visit, that he obtained a haircut that dramatically changed his appearance within an hour after the shooting, certain statements he made to police, and Giuca's possession of guns ( see People v Midler, 72 AD3d 1329, 1336; People v Giuca, 58 AD3d 750; People v Faccio, 33 AD3d 1041, 1042; People v Bailey, 14 AD3d 362, 363; People v Torres, 179 AD2d 696, 696-697), inasmuch as the probative value of the evidence outweighed any unfair prejudice ( see People v Caban, 14 NY3d 369, 375; People v Giuca, 58 AD3d 750). Further, the defendant has not preserved for appellate review his contention that the Supreme Court erred in failing to give the jury limiting instructions pertaining to certain of this evidence ( see CPL 470.05).

In my view, the hearing court correctly determined that significant portions of speedy trial time, over the course of 15 months, were excludable from the calculus of CPL 30.30 as the defendant's location could not be determined with due diligence ( see CPL 30.30 [c] [i]; cf. People v Garrett, 171 AD2d 153, 156). Police efforts may constitute due diligence even where, as here, greater efforts conceivably could have been undertaken by them ( see People v Grey, 259 AD2d 246, 249; People v Marrin, 187 AD2d 284, 286). As to the remaining grounds on which the defendant seeks a reversal of his judgment of conviction, the trial court did not err in its ruling regarding the People's closing argument ( see People v Ashwal, 39 NY2d 105, 109), or in charging the jury on consciousness of guilt ( cf. People v Torres, 179 AD2d 696), and counsel was not ineffective ( see People v Benevento, 91 NY2d 708, 712-713; People v Rivera, 71 NY2d 705, 709, People v Baldi, 54 NY2d 137, 147).

The witness' testimony of his conversation with the fellow inmate circumstantially connected the defendant to the threat (see People v. Cotto, 222 A.D.2d 345; People v. Kornegay, 164 A.D.2d 868). The witness' credibility was a matter for the jury. The trial court also providently exercised its discretion in permitting the alteration of the defendant's tattoo to be considered as evidence of consciousness of guilt (see People v. Torres, 179 A.D.2d 696). While there was no direct evidence as to when the defendant altered his tattoo, there was sufficient evidence from which it could be inferred that the tattoo was altered after the shooting. Further, the trial court gave a comprehensive instruction regarding evidence of consciousness of guilt, advising the jury that such proof has slight value, must be scrutinized carefully, and that there could be innocent explanations for such conduct.

JJ. The trial court erred in setting aside the verdict against defendant Harris and the second-degree robbery conviction against defendant Lee. Viewing the evidence in a light most favorable to the People and giving them all reasonable inferences that could be drawn in their favor, a "community of purpose" (see, People v. Allah, 71 N.Y.2d 830, 832), as well as Harris's full knowledge of Lee's intentions, were evidenced by Harris's actions of entering the cab with Lee after Lee called him over, standing nearby as the crime took place (see, Matter of Devin R., 254 A.D.2d 221, 222), throwing a rock at the cab's window, fleeing into the same location as Lee and then walking with him after the crime, whereupon defendants were arrested by the police (see also, People v. Cabey, 85 N.Y.2d 417; People v. Burrell, 236 A.D.2d 240). The fact that Harris changed his clothes during the 10 minutes between the commission of the crime and his arrest also evidenced a consciousness of guilt (see, People v. Torres, 179 A.D.2d 696, lv denied 79 N.Y.2d 1008). Since the evidence provided a basis from which to infer that Harris acted as a lookout, in addition to proving that Harris acted in concert with Lee, it also proved that Harris was "actually present", supporting his conviction of robbery in the second degree (Penal Law § 160.10[1]; see, People v. Taylor, 203 A.D.2d 77, lv denied 83 N.Y.2d 915). Because the evidence sufficed to establish that Harris acted as Lee's accomplice and aided him in committing the robbery while actually present, it was also sufficient to establish that Lee committed robbery in the second degree.

EY, JJ. The trial court erred in setting aside the verdict against defendant Harris and the second-degree robbery conviction against defendant Lee. Viewing the evidence in a light most favorable to the People and giving them all reasonable inferences that could be drawn in their favor, a "community of purpose" (see, People v. Allah, 71 N.Y.2d 830, 832), as well as Harris's full knowledge of Lee's intentions, were evidenced by Harris's actions of entering the cab with Lee after Lee called him over, standing nearby as the crime took place (see, Matter of Devin R., 254 A.D.2d 221, 222), throwing a rock at the cab's window, fleeing into the same location as Lee and then walking with him after the crime, whereupon defendants were arrested by the police (see also, People v. Cabey, 85 N.Y.2d 417; People v. Burrell, 236 A.D.2d 240). The fact that Harris changed his clothes during the 10 minutes between the commission of the crime and his arrest also evidenced a consciousness of guilt (see, People v. Torres, 179 A.D.2d 696, lv denied 79 N.Y.2d 1008). Since the evidence provided a basis from which to infer that Harris acted as a lookout, in addition to proving that Harris acted in concert with Lee, it also proved that Harris was "actually present", supporting his conviction of robbery in the second degree (Penal Law § 160.10[1]; see, People v. Taylor, 203 A.D.2d 77, lv denied 83 N.Y.2d 915). Because the evidence sufficed to establish that Harris acted as Lee's accomplice and aided him in committing the robbery while actually present, it was also sufficient to establish that Lee committed robbery in the second degree.

In addition, the court instructed the jury that "[t]he law does permit, but does not require, that you may infer" from the officer's destruction of the notes that there were other materials in them. Under the circumstances of this case, we conclude that the court's sanction did not constitute an abuse of discretion (see, People v. Frazier, 233 A.D.2d 896, 897-898; see generally, People v. Collins, 203 A.D.2d 888, 888-889, lv denied 84 N.Y.2d 934, 85 N.Y.2d 861; People v. Torres, 179 A.D.2d 696, 697, lv denied 79 N.Y.2d 1008). Defendant further contends that the court erred in failing to grant his CPL 330.30 motion on the ground that the People did not provide defense counsel with a report indicating that the victim's wife was unable to identify from a photo array one of the other alleged participants in the robbery and murder.

The fact that the store clerk failed to identify defendant's photograph from an array was fully explored during cross-examination of the store clerk and the investigator. Moreover, defense counsel was given considerable leeway to cross-examine the investigator concerning the loss of the reports and to comment about their loss on summation. Under those circumstances, we conclude that Supreme Court was not obligated to impose a sanction (see, People v Torres, 179 A.D.2d 696, 697, lv denied 79 N.Y.2d 1008; People v Kaminski, 156 A.D.2d 471, 472, lv denied 75 N.Y.2d 869). Defendant's collateral estoppel argument is not preserved for review (see, CPL 470.05), and we decline to address it as a matter of discretion in the interest of justice (see, CPL 470.15). Defendant was not denied effective assistance of counsel by counsel's calling an alibi witness whose testimony was later impeached (see, People v Rose, 57 N.Y.2d 837, 839). Defendant failed to object to the prosecutor's impeachment of an alibi witness concerning her failure timely to bring her alibi evidence to the attention of the police, so that issue is not preserved for review (see, People v Cruz, 171 A.D.2d 607, 608, lv denied 78 N.Y.2d 921; People v Perez, 159 A.D.2d 219, 220, lv denied 76 N.Y.2d 740).

Viewing the evidence in the light most favorable to the presentment agency (see, Matter of Clarence C., 166 A.D.2d 442; Matter of John G., 118 A.D.2d 646), it established that the appellant stole a sum of currency from the complainant's person (see, Penal Law § 155.30; People v Sumter, 173 A.D.2d 659). Although the complainant's testimony that the appellant removed the money from his pocket conflicted with the complainant's prior statement that the appellant removed the money from the complainant's closed hand, this minor inconsistency was not sufficient to render the complainant's testimony incredible as a matter of law (see, People v Sostre, 182 A.D.2d 788; People v Torres, 179 A.D.2d 696). Moreover, we are satisfied that the Family Court's factual findings were not contrary to the weight of the evidence. In this case the hearing court was in the best position to assess the complainant's credibility, as it saw and heard his testimony first hand (see, People v Gaimari, 176 N.Y. 84, 94).