Opinion
September 20, 1990
Appeal from the Supreme Court, Bronx County (Elbert C. Hinkson, J.).
The People's loss of certain evidence was the result of inadvertence. Defendant has failed to allege any prejudice arising from the failure to preserve this evidence, in support of his Rosario claim. (People v. Martinez, 71 N.Y.2d 937, 940.) Moreover, the overwhelming evidence of defendant's guilt coupled with his inability to attribute any significance to the missing evidence support our conclusion that the trial court did not abuse its discretion in denying defendant's motion for a mistrial. (People v. Haupt, 71 N.Y.2d 929, 931.)
We reject defendant's claim that the trial court improperly failed to charge the jury, as requested by both the defense and the prosecution, on the voluntariness of defendant's pretrial statements, pursuant to CPL 710.70. Notwithstanding the parties' agreement, such a charge is inappropriate where defendant has failed to introduce evidence at trial contesting voluntariness. (People v. Graham, 55 N.Y.2d 144, 147.)
Defendant has failed to demonstrate that the sentencing court abused its discretion.
Concur — Murphy, P.J., Ross, Carro and Rosenberger, JJ.