People v. Malone

The court properly declined to draw an adverse inference from the People’s failure to preserve cell phone photographs that the victim took of her injuries and showed to the prosecutor. The photos were not discoverable under Brady v Maryland (373 US 83 [1963]) because there is no indication they were exculpatory or otherwise favorable to the defense. They were not discoverable under People v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]) because they were not prior statements of a witness (see CPL 240.45 [1] [a]; People v Wilson, 210 AD2d 520, 521 [1994], lv denied 85 NY2d 982 [1995]).

Defendant’s argument that the People were required by CPL 240.20 (1) (d) to obtain and disclose the photographs is unpreserved and we decline to review it in the interest, of justice. As an alternative holding, we find that defendant did pot establish any basis for an adverse inference. Concur — Tom, J.E, Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.