PEOPLE v. CABA (1998)

Judgment, Supreme Court, Bronx County (Frank Torres, J.), rendered December 12, 1997, convicting defendant, after a jury trial, of robbery in the first and second degrees, burglary in the first degree and two counts of unlawful imprisonment in the second degree, and sentencing him, as a second felony offender, to three concurrent determinate terms of 15 years to be served concurrently with two concurrent terms of 1 year, unanimously affirmed.

 Defendant's suppression motion was properly denied.   His present argument that the lineup was suggestive because he was wearing an article of clothing allegedly similar to one described by the complainant is unpreserved for appellate review (People v. Duckfield, 149 A.D.2d 726, 540 N.Y.S.2d 703, lv. denied 74 N.Y.2d 739, 545 N.Y.S.2d 113, 543 N.E.2d 756), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the clothing item in question was a common one that, under the circumstances, including the lapse of time from the crime to the lineup, could not have had a suggestive effect (see, People v. Lee, 207 A.D.2d 953, 617 N.Y.S.2d 81, lv. denied 85 N.Y.2d 864, 624 N.Y.S.2d 383, 648 N.E.2d 803;  People v. Torres, 182 A.D.2d 587, 583 N.Y.S.2d 797, lv. denied 80 N.Y.2d 897, 587 N.Y.S.2d 927, 600 N.E.2d 654).

 The court properly exercised its discretion in denying defendants' request for an adverse inference charge predicated upon the loss of the tape of the complainant's 911 telephone call, since there was no bad faith by the People, and since defendant was not prejudiced by the loss in that he was furnished with the Sprint printout and other police reports relating to the crime, which afforded him sufficient opportunity to elicit a claimed discrepancy in the complainant's description (see, People v. Daniels, 254 A.D.2d 54, 681 N.Y.S.2d 483).

MEMORANDUM DECISION.