Opinion
July 13, 1990
Appeal from the Chautauqua County Court, Adams, J.
Present — Callahan, J.P., Doerr, Green, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Since destruction of the dispatch tape by the police was inadvertent, the sanction of dismissal was not necessary to rectify whatever harm defendant may have suffered by the loss of this evidence (see, People v Rice, 75 N.Y.2d 929, 932; People v. Martinez, 71 N.Y.2d 937, 940; People v. Kelly, 62 N.Y.2d 516, 520-521; People v. Beam, 161 A.D.2d 1153). The court did not abuse its discretion in imposing an adverse inference charge as a lesser sanction for the failure to preserve the tape. The court properly refused to charge unauthorized use of a motor vehicle in the third degree as a lesser included offense because there was no reasonable view of the evidence to support it (see, People v. Green, 56 N.Y.2d 427). Defendant's contentions regarding the court's charge and evidentiary rulings do not require reversal. On this record defendant's sentence is not excessive.