People v. Brown ( 2010 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harms, J.), rendered May 14, 2008, convicting him of robbery in the first degree, upon a jury verdict, and sentencing him to a determinate term of 12 years imprisonment, followed by five years of postrelease supervision.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the determinate term of 12 years imprisonment to a determinate term of nine years imprisonment; as so modified, the judgment is affirmed.

The Supreme Court providently exercised its discretion in declining to impose any sanction against the People for the loss of Rosario material (People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]). The defendant failed to carry his burden of showing a reasonable possibility that the police officer’s destruction of a draft complaint report materially contributed to the defendant’s conviction or caused him any prejudice (see CPL 240.75; People v Sorbello, 285 AD2d 88, 96 [2001]; People v Norris, 34 AD3d 501, 502-503 [2006]).

The defendant’s contention that the trial court’s response to a jury note was not “meaningful” (People v Malloy, 55 NY2d 296, 301 [1982], cert denied 459 US 847 [1982]; CPL 310.30) is not preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]) and, in any event, is without merit, as the supplemental charge conveyed a correct statement of the law (see People v Mateo, 5 AD3d 507 [2004]), and was consistent with the main charge to which the defendant did not object.

The sentence imposed was excessive to the extent indicated herein (see People v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Leventhal, Lott and Austin, JJ., concur.