People v Rodney Bailey

People v Bailey 2005 NY Slip Op 09188 [24 AD3d 106] December 1, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent,
v
Rodney Bailey, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 30, 2003, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 25 years to life, unanimously affirmed.

Defendant abandoned his claim that the court should have given an adverse inference instruction concerning the People's failure to preserve a 911 tape (see People v Graves, 85 NY2d 1024, 1027 [1995]). In any event, an adverse inference instruction was not required since there was no bad faith on the part of the People and defendant was not prejudiced (see People v Martinez, 71 NY2d 937, 940 [1988]). Defendant made effective impeachment use of the Sprint report (see e.g. People v Marengo, 276 AD2d 358 [2000], lv denied 95 NY2d 936 [2000]; People v Caba, 255 AD2d 232 [1998], lv denied 93 NY2d 967 [1999]), and his claim that the 911 recording would have yielded more impeachment material is speculative (see People v Peralta, 271 AD2d 359 [2000], lv denied 95 NY2d 837 [2000]).

Defendant's claims with respect to aspects of the court's charge to the jury are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the charge as a whole conveyed the appropriate standards (see People v Fields, 87 NY2d 821, 823 [1995]).

We perceive no basis for reducing the sentence. Concur—Buckley, P.J., Tom, Saxe, Gonzalez and Malone, JJ.