PEOPLE v. MINUS (2020)

Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered August 25, 2015, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of three years, unanimously affirmed.

The Court's determination not to give an adverse inference charge regarding a manila envelope, used to hold property seized from defendant at the arrest scene, which a detective later discarded at the police station before vouchering the envelope's contents and delivering them to the property clerk, does not warrant reversal (see People v. Smith, 33 A.D.3d 462, 464, 823 N.Y.S.2d 123 [1st Dept. 2006], lv denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 [2007];  People v. Pines, 298 A.D.2d 179, 180, 748 N.Y.S.2d 716 [1st Dept. 2002], lv. denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88 [2002] ).

Even assuming that the envelope contained annotations amounting to Rosario material, there was no reasonable possibility any error in failing to give an adverse inference charge materially contributed to the result at trial (People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134 [1988];  People v. Satlin, 142 A.D.3d 920, 37 N.Y.S.3d 885 [1st Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017] ).

By failing to object, to make specific objections, or to request further relief after the court sustained objections, defendant failed to preserve all but one of his challenges to the prosecutor's summation, and we decline to review the unpreserved arguments in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).  To the extent that a few isolated comments might be deemed error, there was no pattern of inflammatory remarks or anything so egregious as to deprive defendant of a fair trial (see People v. Whaley, 70 A.D.3d 570, 895 N.Y.S.2d 78 [1st Dept. 2010], lv denied 14 N.Y.3d 894, 903 N.Y.S.2d 782, 929 N.E.2d 1017 [2010] ).  Defendant's sole preserved challenge, to the prosecutor's remark that it was “offensive” to suggest that the police officers framed defendant, does not warrant reversal, either standing alone or when viewed along with the other comments at issue.