Opinion
February 26, 1998
Appeal from the Supreme Court, New York County (Budd Goodman, J.)
Our review of the record establishes that there was no Rosario violation. The personal property release form prepared by a testifying police officer, which merely listed personal property returned to defendant, did not constitute a prior statement of the witness ( People v. Rosario, 9 N.Y.2d 286, 289, cert denied 368 U.S. 866; see also, People v. Walker, 220 A.D.2d 214, lv denied 87 N.Y.2d 909). In any event, a fair reading of the record indicates that attempts were made to locate the form, that the form was lost, and that its loss was not attributable to lack of due diligence by the prosecution. Further, defendant suffered no discernible prejudice from the loss of the form, particularly in light of defendant's vigorous arguments in summation regarding the significance of the unproduced property form, as permitted by the court's ruling. Thus, the court properly exercised its discretion in denying defendant's application for an adverse inference charge ( People v. Hyde, 172 A.D.2d 305, lv denied 78 N.Y.2d 1077).
Concur — Milonas, J. P., Williams, Mazzarelli and Andrias, JJ.