People v. Smith

— Judgment, Supreme Court, New York County (Clifford A. Scott, J.), rendered January 29, 1990, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of IVi to 15 years, unanimously reversed, on the law and on the facts, the judgment vacated, and the matter remanded for a new trial, and since the People concede a Rosario error, the trial court is directed to fashion an appropriate sanction.

For the reasons stated in the codefendant’s appeal (People v Boyne, 174 AD2d 103), the court erred in denying the request for an adverse inference instruction as to a missing 911 tape, and in giving supplemental instructions without providing *369defense counsel an opportunity to be heard. Concur — Sullivan, J. P., Carro, Asch and Rubin, JJ.