PEOPLE v. RUBERO

The trial court properly denied defendant's request for preclusion of testimony concerning a lost item of physical evidence, since there was no evidence of bad faith, and any possibility of prejudice to defendant was highly speculative (see, People v. Kelly, 62 N.Y.2d 516; People v. Aponte, 240 A.D.2d 317, lv denied, 91 N.Y.2d 868; see also, Arizona v. Youngblood, 488 U.S. 51). "The adverse inference charge was a sound exercise of the court's discretion, assuming any sanction was required in the first place." (People v. Rice, 223 A.D.2d 405, 406, lv denied 87 N.Y.2d 1024). Defendant's challenge to the content of the court's adverse inference charge is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the instruction accurately stated the law (see, People v. Martinez, 71 N.Y.2d 937).

The court properly imposed consecutive sentences for the robbery and attempted murder convictions. In this robbery of a pizza store, defendant obtained the store owner's money at gunpoint and then demanded his chain. The trial evidence clearly established that after defendant took the victim's chain, defendant formed a new intent, which was to kill the victim, and committed a distinct criminal act by shooting the victim three separate times, having fired the third shot into the victim's face as defendant stood over the fallen victim (see, People v. Hernandez, 186 A.D.2d 471, 474-475, affd 82 N.Y.2d 309; see also, People v. Tanner, 30 N.Y.2d 102, 108).

The record establishes that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714). Defendant's remaining contentions, including those contained in his pro se supplemental brief, are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.