PEOPLE v. JOHNSON (2002)

Judgment, Supreme Court, New York County (Howard Bell, J.), rendered March 3, 1994, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and theft of services, and sentencing him to a concurrent terms of 2 to 6 years and 6 months, respectively, unanimously affirmed.

Defendant's arrest photograph was properly admitted to corroborate testimony by the arresting officer as to the black clothing defendant was wearing at the time of his arrest, which tended to explain why the officer did not see the black gun defendant had in his waistband gun until defendant discarded it (see, People v. Smith, 254 A.D.2d 192, 682 N.Y.S.2d 3, lv. denied 93 N.Y.2d 979, 695 N.Y.S.2d 65, 716 N.E.2d 1110).   There is no indication in the record that this redacted photograph conveyed any suggestion of criminal propensity, and no such argument was made by the People (compare, People v. Black, 117 A.D.2d 512, 497 N.Y.S.2d 929).

Defendant's challenge to the adequacy of the court's adverse inference charge with respect to the loss of the memo book of the arresting officer's partner is unpreserved (see, People v. Whalen, 59 N.Y.2d 273, 464 N.Y.S.2d 454, 451 N.E.2d 212), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that defendant was not prejudiced by the loss of the memo book (see, CPL 240.75) and that the court's adverse inference charge provided a more than adequate remedy (see, People v. Vasquez, 88 N.Y.2d 561, 577, 647 N.Y.S.2d 697, 670 N.E.2d 1328).