| People v Jackson |
| 2015 NY Slip Op 08759 [133 AD3d 883] |
| November 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Walter Jackson, Appellant. |
Marianne Karas, Thornwood, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven A.Bender of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the County Court, WestchesterCounty (Adler, J.), rendered July 12, 2013, convicting him of unlawful possession ofmarijuana (two counts), upon a jury verdict, and imposing sentence, and (2) a resentenceof the same court imposed October 31, 2013.
Ordered that the judgment and the resentence are affirmed.
At trial, the County Court gave an adverse inference charge permitting the jury toconsider the People's failure to preserve certain physical evidence in determining theweight to be given to their witnesses' testimony. The defendant contends that this adverseinference charge was inadequate to remedy the prejudice caused to him by the People'sfailure to preserve the evidence. "The loss or destruction of evidence prior to trial doesnot necessarily require imposition of a sanction" (People v Seignious, 114 AD3d 883, 884 [2014]). "Thecourt's determination of an appropriate sanction must be based primarily on the need toeliminate prejudice to the defendant" (People v Rice, 39 AD3d 567, 568-569 [2007]). Contrary tothe defendant's contention, the court providently exercised its discretion in giving theadverse inference charge, as the charge given was sufficient to dispel any prejudice(see People v Gibbs, 85 NY2d 899, 900-901 [1995]; People v Hernandez, 25 AD3d566, 566-567 [2006]; People v Hardy, 274 AD2d 591 [2000]).
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Mastro, J.P., Dickerson, Miller and Maltese, JJ., concur.