PEOPLE v. BAILEY (2005)

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 30, 2003, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 25 years to life, unanimously affirmed.

 Defendant abandoned his claim that the court should have given an adverse inference instruction concerning the People's failure to preserve a 911 tape (see People v. Graves, 85 N.Y.2d 1024, 1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220 [1995] ).   In any event, an adverse inference instruction was not required since there was no bad faith on the part of the People and defendant was not prejudiced (see People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134 [1988] ).   Defendant made effective impeachment use of the Sprint report (see e.g. People v. Marengo, 276 A.D.2d 358, 714 N.Y.S.2d 43 [2000], lv. denied 95 N.Y.2d 936, 721 N.Y.S.2d 612, 613, 744 N.E.2d 148, 149 [2000];  People v. Caba, 255 A.D.2d 232, 682 N.Y.S.2d 6 [1998], lv. denied 93 N.Y.2d 967, 695 N.Y.S.2d 53, 716 N.E.2d 1098 [1999] ), and his claim that the 911 recording would have yielded more impeachment material is speculative (see People v. Peralta, 271 A.D.2d 359, 708 N.Y.S.2d 369 [2000], lv. denied 95 N.Y.2d 837, 713 N.Y.S.2d 144, 735 N.E.2d 424 [2000] ).

 Defendant's claims with respect to aspects of the court's charge to the jury are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the charge as a whole conveyed the appropriate standards (see People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134 [1995] ).

We perceive no basis for reducing the sentence.