Opinion
December 2, 1993
Appeal from the Supreme Court, Bronx County (John E.H. Stackhouse, J.).
Minutes after defendant shot the victim, he was arrested while fleeing from the scene by a police officer who recovered from defendant's person the still warm two-shot derringer. Thereafter, as the victim was being removed by ambulance, he identified defendant.
We reject defendant's contention that Criminal Term erred in not admitting into evidence the officer's UF-61, which mistakenly indicated that the derringer had been recovered from co-defendant Amar Gilbert, rather than from defendant, since we find that defense trial counsel did not lay a proper foundation for its admission. In any event, defendant was not prejudiced by the ruling since the jury was apprised of its contents (People v Adams, 72 A.D.2d 156, 161, affd 53 N.Y.2d 1, cert denied 454 U.S. 854).
Defendant's contention that Criminal Term improperly interfered with defendant's cross-examination of the People's witnesses is without merit. Rather, the court's participation simply served "to keep the proceedings within the reasonable confines of the issues and to encourage clarity rather than obscurity in the development of proof" (People v Moulton, 43 N.Y.2d 944, 945).
Nor is there merit to defendant's contention that the court's Rosario sanction for the loss of the scratch copy of Officer Whitney's UF-61 was inadequate. The court delivered an adverse inference charge against the People, eliminating thereby any possibility of prejudice to the defendant (see, People v Franco, 189 A.D.2d 589, lv denied 81 N.Y.2d 970).
We have considered the remaining contentions of defendant, and find them to be without merit.
Concur — Sullivan, J.P., Carro, Rosenberger, Ross and Asch, JJ.