PEOPLE v. RADAMES ACOSTA

Ordered that the judgment is affirmed.

The People "have an affirmative obligation to preserve all discoverable evidence within their possession" ( People v James, 93 NY2d 620, 644; see People v Hernandez, 285 AD2d 559). Here, when a surveillance videotape was destroyed, it had not been "gathered by the prosecution or its agent" ( People v Kelly, 62 NY2d 516, 520; see People v James, 93 NY2d at 644), and there is no indication that the People otherwise had the videotape "within their possession and control" ( People v O'Brien, 270 AD2d 433, 434). Accordingly, the defendant was not entitled to an adverse inference charge regarding the videotape ( see People v Tutt, 305 AD2d 987).

That branch of the defendant's omnibus motion which was to suppress physical evidence was properly denied ( see People v Ruppert, 42 AD3d 817, 817-818; People v Green, 41 AD3d 162, 162-163).