Opinion
June 7, 1991
Appeal from the Supreme Court, Erie County, Rossetti, J.
Present — Callahan, J.P., Denman, Balio, Lawton and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court properly rejected defendant's request that the jury be given a missing witness charge on the basis of the People's inability to produce an informant for trial, despite their diligent yet unsuccessful attempts to locate him (see, People v Gonzalez, 68 N.Y.2d 424; People v Sturgis, 154 A.D.2d 906, lv denied 75 N.Y.2d 776; People v Morris, 140 A.D.2d 551, lv denied 72 N.Y.2d 922). In addition, the court's instruction to the jury that the People's pretrial destruction of cocaine could be considered with respect to the sufficiency of the evidence was an appropriate exercise of discretion. The destruction was inadvertent, the prejudice to defendant was minimal and defendant acceded to the instruction (see, People v Martinez, 71 N.Y.2d 937; People v Perrin, 163 A.D.2d 809, lv denied 76 N.Y.2d 989; see generally, People v Kelly, 62 N.Y.2d 516).
Although the trial court erred in admitting testimony about an aborted subsequent attempt to purchase cocaine from defendant, the court's curative instruction was sufficient to correct that error, and thus defendant was not deprived of a fair trial.
We have examined defendant's other contentions and find them to be without merit.