PEOPLE v. LATHIGEE

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Joseph LATHIGEE, Appellant.

Decided: August 19, 1998

Before GREEN, J.P., and WISNER, PIGOTT, CALLAHAN and BOEHM, JJ.

 Defendant appeals from a judgment convicting him of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4] ).   Defendant contends that two property receipts, which were signed by the owner of the weapon found in the possession of defendant, constitute Rosario material that the People failed to disclose.   We disagree.   The receipts, signed by the owner when he retrieved his property from the police, do not contain statements, factual accounts or descriptions of the events underlying the charges;  therefore, they do not constitute Rosario material (see, People v. Polk, 247 A.D.2d 342, 669 N.Y.S.2d 217;  People v. Walker, 220 A.D.2d 214, 632 N.Y.S.2d 68, lv. denied 87 N.Y.2d 909, 641 N.Y.S.2d 238, 663 N.E.2d 1268, lv. dismissed 87 N.Y.2d 926, 641 N.Y.S.2d 608, 664 N.E.2d 519;  People v. Moolenaar, 207 A.D.2d 711, 616 N.Y.S.2d 590, lv. denied 84 N.Y.2d 1013, 622 N.Y.S.2d 925, 647 N.E.2d 131, 85 N.Y.2d 864, 624 N.Y.S.2d 384, 648 N.E.2d 804;  People v. Durgey, 186 A.D.2d 899, 902, 589 N.Y.S.2d 631, lv. denied 81 N.Y.2d 788, 594 N.Y.S.2d 734, 610 N.E.2d 407).

 The chain of custody evidence is sufficient to provide reasonable assurances of the identity and unchanged condition of the items seized from defendant (see, People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  People v. Ceanfuegos, 220 A.D.2d 680, 633 N.Y.S.2d 55, lv. denied 87 N.Y.2d 971, 642 N.Y.S.2d 200, 664 N.E.2d 1263;  People v. Casado, 212 A.D.2d 1028, 1029, 623 N.Y.S.2d 449, lv. denied 85 N.Y.2d 970, 629 N.Y.S.2d 730, 653 N.E.2d 626;  People v. Mateo, 205 A.D.2d 377, 377-378, 613 N.Y.S.2d 384, lv. denied 84 N.Y.2d 829, 617 N.Y.S.2d 149, 641 N.E.2d 170).   Defendant further contends that he was entitled to an adverse inference charge based upon the failure of the police to comply with the notice requirements of Penal Law § 450.10 before releasing the items seized from defendant to their owner.   We disagree.   Defendant did not seek to test the gun or ammunition prior to trial, there is no indication that the police acted in bad faith, and defendant failed to show prejudice resulting from the lack of prior notice (see, People v. Borders, 163 A.D.2d 852, 558 N.Y.S.2d 767, lv. denied 76 N.Y.2d 891, 561 N.Y.S.2d 553, 562 N.E.2d 878).   Photographs of the items taken before their release were admitted at trial (see, People v. Whiten, 156 A.D.2d 606, 607, 549 N.Y.S.2d 112, lv. denied 75 N.Y.2d 926, 555 N.Y.S.2d 44, 554 N.E.2d 81), and defense counsel commented upon the fact that the evidence was missing in attempting to impeach the credibility of the police witnesses (see, People v. Callendar, 207 A.D.2d 900, 900-901, 616 N.Y.S.2d 667, lv. denied 84 N.Y.2d 1029, 623 N.Y.S.2d 185, 647 N.E.2d 457).

Judgment unanimously affirmed.

MEMORANDUM: