PEOPLE v. AQUEVARENO (2005)

Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered December 1, 2003, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 1/212 to 5 years, unanimously affirmed.

The court's jury instruction concerning the effect of lack of evidence, taken as a whole and in context of the court's instructions, was sufficiently balanced and did not undermine defendant's defense (see People v. Jiovani, 258 A.D.2d 277, 685 N.Y.S.2d 66 [1999], lv. denied 93 N.Y.2d 900, 689 N.Y.S.2d 712, 711 N.E.2d 988 [1999];  see also People v. Lilly, 264 A.D.2d 684, 696 N.Y.S.2d 423 [1999], lv. denied 94 N.Y.2d 825, 702 N.Y.S.2d 595, 724 N.E.2d 387 [1999];  People v. Kramer, 240 A.D.2d 204, 658 N.Y.S.2d 290 [1997], lv. denied 91 N.Y.2d 875, 668 N.Y.S.2d 574, 691 N.E.2d 646 [1997] ).

 The court provided a meaningful response when it correctly advised the deliberating jury that a matter it appeared to be raising in its note presented no factual question for the jury to resolve (see People v. Malloy, 55 N.Y.2d 296, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982] ).   In any event, the instruction could not have caused any prejudice to defendant (see People v. Wright, 270 A.D.2d 176, 705 N.Y.S.2d 223 [2000], lv. denied 94 N.Y.2d 954, 710 N.Y.S.2d 11, 731 N.E.2d 628 [2000] ).

 The court properly exercised its discretion in refusing to issue an adverse inference instruction regarding the inadvertent loss of property recovered from defendant (see People v. Kelly, 62 N.Y.2d 516, 478 N.Y.S.2d 834, 467 N.E.2d 498 [1984] ).   The item in question was irrelevant and there was no bad faith on the part of the prosecution or prejudice to defendant.