People v Gayner H.

People v Gayner H. 2003 NY Slip Op 23962 [2 Misc 3d 44] Accepted for Miscellaneous Reports Publication AT2 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 14, 2004

[*1] The People of the State of New York, Respondent,
v
Gayner H., Appellant.

Supreme Court, Appellate Term, Second Department, December 12, 2003

APPEARANCES OF COUNSEL

Legal Aid Society, New York City (Andrew C. Fine and Robert Budner of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

{**2 Misc 3d at 47} OPINION OF THE COURT

Memorandum.

Judgment adjudicating defendant a youthful offender unanimously affirmed.

Defendant's contention that the People failed to comply with the notice requirement set forth in Penal Law § 450.10 is without merit since the police never had custody of the stolen merchandise (People v Williams, 214 AD2d 437 [1995]; People v Faucette, 201 AD2d 252 [1994]; People v Lowe, 135 AD2d 836 [1987]). The police officer merely photographed the merchandise in question at the store after the security guard apprehended the defendant.

The attention of the Legislature should be drawn to the problem that there is no obligation on the part of the owner of the stolen property to preserve said property for trial (cf. Penal Law § 450.10). While we recognize that some goods are perishable or apt to lose value if preserved, we feel that certain measures should be taken to protect a defendant's opportunity to prepare a defense. It would seem prudent in most instances for the police to take custody of the goods for a limited and specific time period. Thus, defendant would have the opportunity to examine the goods in preparation for trial.

Pesce, P.J., Aronin and Patterson, JJ., concur.