PEOPLE v. SIMS (2001)

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered November 24, 1998, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/212 to 7 years, unanimously affirmed.

 The court properly denied defendant's request for a sanction for lost administrative police reports.   The record fails to establish that the reports constituted Rosario material in the first place, or that defendant was prejudiced by their loss or destruction in this case involving the robbery of an undercover officer.   The opening 61 report, the purpose of which is to assign a number to the three-month-long undercover drug operation to be reflected on all operation paperwork, was not prepared by any of the People's witnesses.   The closing 61 report, listing the names of all those arrested, the charges for which they were arrested and the dates of their arrests, did not relate to the subject matter of the arresting officer's testimony and did not constitute Rosario material (see, People v. Watkins, 157 A.D.2d 301, 314, 556 N.Y.S.2d 541).   Defendant's claim of prejudice is based entirely on speculation.

 The trial court properly declined to submit to the jury the lesser included charge of petit larceny since there was no reasonable view of the evidence that defendant stole money from the undercover officer, but did so without the use of force (see, People v. Negron, 91 N.Y.2d 788, 676 N.Y.S.2d 520, 699 N.E.2d 32) but by means of trick or device.

The challenged portions of the prosecutor's summation were proper responses to the defense summation and did not deprive defendant of a fair trial (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724;  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).   Rather than implying that defendant had a burden of proof, the challenged comments properly cautioned the jury against speculation (see, People v. Nestman, 220 A.D.2d 232, 633 N.Y.S.2d 2, lv. denied 88 N.Y.2d 851, 644 N.Y.S.2d 697, 667 N.E.2d 347).