PEOPLE v. RANDOLPH (1999)

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered November 27, 1996, convicting defendant, after a jury trial, of burglary in the first degree, burglary in the second degree and three counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 13 years to life on the first-degree burglary conviction and 10 years to life on each of the remaining convictions, unanimously affirmed.

 Defendant's claim that the People failed to prove beyond a reasonable doubt that he caused physical injury to the complainant is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that there was ample subjective and objective evidence of physical injury (see, People v. Spry, 232 A.D.2d 232, 648 N.Y.S.2d 86, lv. denied, 89 N.Y.2d 930, 654 N.Y.S.2d 732, 677 N.E.2d 304).   Moreover, the verdict was not against the weight of the evidence.

 The court properly exercised its discretion in denying defendant's application for an adverse inference charge regarding a destroyed 911 tape.   Defendant did not request the tape until more than a month after his arrest, and by that time it had already been destroyed by the Police Department in the course of routine procedure upon the expiration of the standard 90-day period following the underlying incident.   Since there was no bad faith or lack of diligence on behalf of the People, or prejudice to defendant, no sanction was required (People v. Hyde, 172 A.D.2d 305, 568 N.Y.S.2d 388, lv. denied 78 N.Y.2d 1077, 577 N.Y.S.2d 240, 583 N.E.2d 952).

MEMORANDUM DECISION.