Opinion
June 8, 2001.
(Appeal from Judgment of Wyoming County Court, Griffith, J. — Criminal Possession Marihuana, 2nd Degree.)
PRESENT: GREEN, J. P., HAYES, HURLBUTT, SCUDDER AND LAWTON, JJ.
Judgment unanimously affirmed. Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of criminal possession of marihuana in the second degree (Penal Law § 221.25). Contrary to defendant's contention, County Court did not abuse its discretion in refusing to give the adverse inference charge proposed by defendant and in giving its own adverse inference charge concerning the loss of certain evidence by the police ( see generally, People v. Smith, 266 A.D.2d 639, 640, lv denied 94 N.Y.2d 907). That evidence consisted of the paper bags in which the marihuana was found; one of the paper bags was preserved as evidence but the others were not. The prejudice to defendant from the loss of that evidence was minimal ( see, People v. Pargas, 268 A.D.2d 391, 392, lv denied 94 N.Y.2d 923; see generally, People v. Reynoso, 276 A.D.2d 334). Contrary to the further contention of defendant, the evidence is legally sufficient to establish that he exercised dominion and control over the marihuana seized by the police ( see, People v. David, 255 A.D.2d 620, 621; People v. Dwyer, 243 A.D.2d 645, lv denied 91 N.Y.2d 891). The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant failed to preserve for our review his contention that the court erred in failing to give a moral certainty charge ( see, CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).