Majority
p. 467The People of the State of New York, Respondent, v Robert Deas, Also Known as Robert Deaz, Appellant. [617 NYS2d 328]
Judgment, Supreme Court, Bronx County (John Stackhouse, J.), rendered October 29, 1992, convicting defendant, after a jury trial, of robbery in the second degree and assault in the second degree, and sentencing him, as a second violent felony offender, to concurrent prison terms of IVi to 15 years and 5 to 10 years, respectively, unanimously affirmed.
The court’s adverse inference charge was an appropriate sanction for the People’s failure to turn over the notes of a duty captain who interviewed the complainant at the hospital. Defendant waived his appellate argument that the sanction
p. 468
was inadequate because the People failed to carry their burden of establishing that the unproduced material did not exist or was not subject to disclosure by acquiescing in the court’s proposed sanction, namely, an adverse inference charge. Defendant’s argument that, in any event, the court’s adverse inference charge was "deficient” is unpreserved for appellate review (CPL 470.05 [2]). Concur—Carro, J. P., Rosenberger, Ellerin, Nardelli and Tom, JJ.