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

The PEOPLE, etc., Respondent, v. Nigel LAWRENCE, Appellant.

Decided: May 27, 1997

Before BRACKEN, J.P., and COPERTINO, PIZZUTO and SANTUCCI, JJ. Joseph C. Heinzmann, Jr., White Plains, for appellant. Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Monique Ferrell, and David O. Leiwant, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J.), rendered October 14, 1994, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the trial court erred in failing to impose a sanction on the People based upon their failure to turn over copies of handwritten notes taken by a detective during his interview of a witness on the day of the murder.   At a pretrial hearing the detective testified that these notes were in his car when it was stolen approximately two and one-half years after the crime took place.   A trial court must impose an appropriate sanction “[w]here the People fail to exercise due care in preserving Rosario material and the defendant is prejudiced thereby” (People v. Wallace, 76 N.Y.2d 953, 955, 563 N.Y.S.2d 722, 565 N.E.2d 471 [emphasis added];  see also, People v. Banch, 80 N.Y.2d 610, 616, 593 N.Y.S.2d 491, 608 N.E.2d 1069;  People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134).   Here, however, assuming arguendo that the People did not exercise due care in preserving the notes, the defendant has failed to demonstrate any prejudice as a result of the loss.   Accordingly, the trial court did not improvidently exercise its discretion in not imposing a sanction.

Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5] ).

The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).


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