Opinion
January 21, 1997.
Appeal by the defendant (1) from a judgment of the Supreme Court, Kings County (R. Goldberg, J.), rendered January 7, 1994, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence, and (2) by permission, from an order of the same court, dated September 9, 1994, which denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.
Before: Miller, J. P., Santucci, Joy and Krausman, JJ.
Ordered that the judgment and order are affirmed.
It was not an improvident exercise of discretion for the trial court to permit the People's witness to testify about a piece of evidence that was lost while in police custody ( see, People v Kelly, 62 NY2d 516; People v Rodriguez, 210 AD2d 266).
The defendant's sentence was not excessive ( see, People v Suitte, 90 AD2d 80).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.