People v. Monahan

• Decision Date: 31 March 1997
• Citation: 237 A.D.2d 623,655 N.Y.S.2d 1011
• Parties: The PEOPLE, etc., Respondent, v. George MONAHAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1011

655 N.Y.S.2d 1011

237 A.D.2d 623

The PEOPLE, etc., Respondent, v. George MONAHAN, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

March 31, 1997.

Sally Wasserman, Freeport, for appellant.

Denis Dillon, District Attorney, Mineola (Judith R. Sternberg and Alexis Kriedman, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Orenstein, J.), rendered June 9, 1993, convicting him of burglary in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

Having failed to move for the suppression of physical evidence on the ground that the warrantless search of his car at the police station constituted an improper inventory search, the defendant's instant contention in this regard is not preserved for appellate review (see, People v. Dickens, 88 N.Y.2d 1031, 651 N.Y.S.2d 10, 673 N.E.2d 1237; People v. Claudio, 64 N.Y.2d 858, 487 N.Y.S.2d 318, 476 N.E.2d 644; People v. Manuli, 156 A.D.2d 388, 548 N.Y.S.2d 340). In any event, the hearing court correctly determined that the warrantless search of the defendant's car and seizure of physical evidence was not unlawful (see, People v. Galak, 81 N.Y.2d 463, 600 N.Y.S.2d 185, 616 N.E.2d 842; People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 541 N.E.2d 40; People v. Orlando, 56 N.Y.2d 441, 452 N.Y.S.2d 559, 438 N.E.2d 92; People v. Milerson, 51 N.Y.2d 919, 434 N.Y.S.2d 980, 415 N.E.2d 968; People v. Fulton, 189 A.D.2d 778, 593 N.Y.S.2d 53).

Equally unavailing is the defendant's assertion that the court erred in failing to deliver an adverse inference charge due to the destruction of Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64), in this case the tape recording of the complainant's 911 telephone call. The defendant failed to establish that the destruction of the tape, which occurred prior to his demand for it, was the result of lack of due care on behalf of the prosecution and that he was prejudiced by its destruction (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134; People v. Segui, 208 A.D.2d 447, 617 N.Y.S.2d 718; People v. Hyde, 172 A.D.2d 305, 568 N.Y.S.2d 388; see also, People v. Diggs, 185 A.D.2d 990, 587...