Opinion
January 30, 1996
Appeal from the Supreme Court, New York County (Allen Alpert, J.).
Evidence of defendant's attempted sexual attack on his former girlfriend and the retaliatory assault upon defendant by her and Keith Samuels was properly admitted to show defendant's motive for shooting Samuels ( People v Alvino, 71 N.Y.2d 233, 241-242), and also to complete the former girlfriend's narrative and assist the jury in comprehending the crime ( People v Steinberg, 170 A.D.2d 50, 73, affd 79 N.Y.2d 673). There is ample support for the trial court's finding that the probative value of the background and motive evidence outweighed the risk of undue prejudice to defendant.
The adverse inference charge given to the jury was an appropriate sanction for the detective's improper destruction of a statement written by defendant's former girlfriend that encompassed matters extraneous to apprehending the shooter, particularly since those matters were fully examined at trial, there was no improper motive for destruction of the statement, and any prejudice from its destruction was minimal, at most ( People v Martinez, 71 N.Y.2d 937, 940). Dismissal of the charge, sought by defendant, is a drastic remedy that should be invoked rarely as an appropriate sanction for failure to preserve evidence ( People v Haupt, 71 N.Y.2d 929).
Defendant's right to a public trial was not infringed by the trial court's order limiting spectator traffic in and out of the courtroom during a key witness's testimony in light of the court's finding that the jury was being unduly distracted ( People v Glover, 60 N.Y.2d 783, cert denied 466 U.S. 975). Comments made by the prosecutor during summation were not objected to on the grounds now raised and, accordingly, any legal issue raised by those comments is not preserved for appellate review ( People v Balls, 69 N.Y.2d 641). Were we to review these unpreserved claims in the interest of justice, we would find them to be without merit.
Concur — Murphy, P.J., Sullivan, Ellerin, Ross and Mazzarelli, JJ.