PEOPLE v. ANONYMOUS

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

The PEOPLE of the State of New York, Respondent, v. ANONYMOUS, Defendant-Appellant.

Decided: March 27, 2007

TOM, J.P., WILLIAMS, BUCKLEY, GONZALEZ, SWEENY, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), and Milbank, Tweed, Hadley & McCloy LLP, New York (Faith E. Jenkins of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered November 21, 2005, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing her, as a second felony offender, to a term of 10 years, unanimously affirmed.

 The verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   There is no basis for disturbing the jury's determinations concerning identification.   Defendant was connected to the crime not only by the identification testimony of two witnesses, but also by a purse containing her identifying documents that she left behind during the crime.

 Since defendant did not request any other remedy, she failed to preserve her argument that the court's adverse inference charge was an insufficient sanction for the negligent loss of evidence by the police, and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the court properly exercised its discretion in determining that an adverse inference charge was appropriate (see e.g. People v. James, 289 A.D.2d 3, 734 N.Y.S.2d 16 [2001], lv. denied 97 N.Y.2d 755, 742 N.Y.S.2d 616, 769 N.E.2d 362 [2002] ).   There was no indication of bad faith (see Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 [1988] ), and no reason to believe that the evidence was exculpatory (see California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 [1984] ).

We perceive no basis for reducing the sentence.