People v. Aquevareno

Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered December 1, 2003, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2V2 to 5 years, unanimously affirmed. The court’s jury instruction concerning the effect of lack of evidence, taken as a whole and in context of the court’s instructions, was sufficiently balanced and did not undermine defendant’s defense (see People v Jiovani, 258 AD2d 277 [1999], lv denied 93 NY2d 900 [1999]; see also People v Lilly, 264 AD2d 684 [1999], lv denied 94 NY2d 825 [1999]; People v Kramer, 240 AD2d 204 [1997], lv denied 91 NY2d 875 [1997]). The court provided a meaningful response when it correctly advised the deliberating jury that a matter it appeared to be reusing in its note presented no factual question for the jury to resolve (see People v Malloy, 55 NY2d 296 [1982], cert denied 459 US 847 [1982]). In any event, the instruction could not have caused any prejudice to defendant (see People v Wright, 270 AD2d 176 [2000], lv denied 94 NY2d 954 [2000]). The court properly exercised its discretion in refusing to issue an adverse inference instruction regarding the inadvertent loss 172 of property recovered from defendant (see People v Kelly, 62 NY2d 516 [1984]). The item in question was irrelevant and there was no bad faith on the part of the prosecution or prejudice to defendant. Concur—Tom, J.P., Marlow, Sullivan, Nardelli and Williams, JJ.