People State New York

Judgment, Supreme Court, New York County (Felice Shea, J. at trial and sentence; Joan B Carey, J. at suppression hearing), rendered April 4, 1989, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, fourth, and seventh degrees, and sentencing him, as a predicate felony offender, to concurrent terms of imprisonment of 5 to 10 years on the sale and third and fourth degree possession counts, and 1 year on the seventh degree possession county, unanimously affirmed. Scratch sheets memorializing descriptions of perpetrators constitute Rosario material (People v. Rosado, 160 A.D.2d 505, lv. denied, 76 N.Y.2d 864), and if not preserved, some appropriate sanction must be imposed to eliminate any prejudice caused by their loss (People v. Wallace, 76 N.Y.2d 953). In view of the overwhelming evidence of guilt and the lack of any serious dispute concerning identification, the sanction fashioned by the trial court, an adverse inference instructions with respect to the arresting officer's credibility, was quite adequate to eliminate any prejudice caused by the inadvertent loss of the scratch sheets (see, People v. Martinez, 71 N.Y.2d 937). The confirmatory identifications made by an experienced undercover soon after the face-to-face transactions he had with the defendants were not improper (see People v. Wharton, 74 N.Y.2d 921).