Opinion
January 6, 1994
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.).
The complainant's testimony, as well as tape recorded conversations, established defendant's guilt of usury in the first degree. (People v. Lombardo, 61 N.Y.2d 97; People v Valentzas, 70 N.Y.2d 446.) The destruction of the original tapes by the police department, pursuant to routine procedure, was not the result of bad faith or lack of due diligence. Nor is there any credible indication that the copies of these tapes, which were introduced into evidence, were altered or in any manner tampered with. The tapes were audible for the most part, the complainant's testimony established their accuracy, and, while defendant notes gaps, such a challenge goes to the weight of the evidence, rather than its admissibility. In submitting a permissive adverse inference instruction to the jury as an appropriate sanction for the destruction of the original tapes, the court did not abuse its discretion.
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Carro, Rosenberger and Wallach, JJ.