People v. Apergis

Jan 6, 1994
Versions:200 A.D.2d 388
608 N.Y.S.2d 77
1994 N.Y. App. Div. LEXIS 78

—Judgment, Su*389preme Court, New York County (Franklin Weissberg, J.) rendered March 23, 1993, convicting defendant after jury trial, of five counts of criminal usury in the first degree, for which defendant was sentenced to 5 concurrent terms of 1 to 3 years, unanimously affirmed. The case is remitted to the Supreme Court, New York County for further proceedings pursuant to CPL 460.50 (5).

The complainant’s testimony, as well as tape recorded conversations, established defendant’s guilt of usury in the first degree. (People v Lombardo, 61 NY2d 97; People v Valentzas, 70 NY2d 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.