People v. Jenkins

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered November 17, 1998, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court providently exercised its discretion in refusing to impose the sanction of preclusion for the People’s alleged untimely disclosure of a ballistics report. Assuming, as did the trial court, that the People failed to timely disclose the report, there was no showing of undue prejudice or bad faith on the part of the People which would warrant the extreme sanction of preclusion (see, People v King, 221 AD2d 472; People v Cunningham, 189 AD2d 821). Although the ballistics report indicated that all the shell casings found at the scene came from the same gun, the ballistics expert could not conclude that a bullet recovered from the decedent’s body or a bullet fragment recovered from the scene were fired from the same gun as the casings. Thus, there could have been as many as three guns fired, a possibility also supported by other evidence in the case. Consequently, despite the alleged late disclosure, the defendant was still able to and did pursue his defense that there were multiple shooters, any one of whom could have fired the fatal shots.

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). Altman, J. P., Friedmann and Cozier, JJ., concur.