Opinion
August 28, 1989
Appeal from the Supreme Court, Queens County (O'Brien, J.).
Ordered that the judgment is affirmed.
The defendant did not testify at trial, and at its conclusion he requested that the jury be instructed pursuant to CPL 300.10 (2) that it could not draw any unfavorable inference from his decision not to testify. In honoring that request, the trial court instructed the jury that: "[u]nder our law a defendant may, if he desires, testify in his own behalf and it is his right to refrain from testifying on the witness stand. I, therefore, charge you in your deliberations you may not draw any unfavorable inference whatsoever from the defendant's election not to testify". While we agree with the defendant that this instruction was an embellishment upon the statutory language, we find that the deviation was minimal. In light of the overwhelming proof of guilt, and the otherwise proper charge, we deem this error harmless beyond a reasonable doubt (see, People v. Crimmins, 36 N.Y.2d 230, 237).
We further find the trial court did not improvidently exercise its discretion by refusing to give an adverse inference charge regarding the People's failure to preserve certain notes taken by both the arresting officer and the undercover officer who purchased the controlled substances. The sanctions to be imposed when Rosario material is lost or destroyed are within the sound discretion of the trial court and, in imposing such sanctions, the trial court should look to fault on the part of the People and prejudice to the defendant (see, People v. Martinez, 71 N.Y.2d 937). We find no such prejudice or fault. The undercover officer destroyed his notes only after transferring their contents to a "Buy Report" which was made available to the defendant, and both the undercover and the arresting officer testified at trial where they were extensively cross-examined (see, People v. Best, 145 A.D.2d 499; People v. Vasquez, 141 A.D.2d 880; People v. Jones, 130 A.D.2d 943). Furthermore, we find no evidence of bad faith on the part of the police or the prosecution in this regard. Kooper, J.P., Spatt, Harwood and Rosenblatt, JJ., concur.