People v. Moody , 600 N.Y.S.2d 581 ( 1993 )

Judgment affirmed. Memorandum: We reject defendant’s contention that County Court should have given an adverse inference charge with respect to a missing composite drawing of the robber, drawn from a description provided by the bank teller who had been held up. Although the drawing should have been disclosed before trial (see, CPL 240.20 [1] [d]), the court properly considered the circumstances surrounding its disappearance. We agree that defendant was not prejudiced by its nondisclosure. The bank teller testified at trial and was subjected to vigorous cross-examination concerning the description that she had given to police officers on the day of the robbery. Further, defendant was positively identified by two other witnesses.

We also reject defendant’s contention that photographs, printed from a videotape made by the bank’s security camera, should not have been admitted into evidence because they were "fuzzy”. Those pictures showed the person robbing the bank and were relevant and material to the question of identity. Whether the pictures were sufficiently clear goes to weight, not admissibility. Nor did the court err in granting the jury’s request, during deliberations, for a magnifying glass. As the court correctly observed, use of the magnifying glass was for the purpose of enhancing the clarity of the photographs, similar to the use of reading glasses. It was not to be used for such impermissible purposes as comparing fingerprints (see, People v Fields, 152 AD2d 958, affd 76 NY2d 761) or determining whether a handwriting exhibit had been tampered with (see, People v Strewl, 246 App Div 400, appeal dismissed 271 NY 607).

We have examined defendant’s remaining contentions and find them to be without merit.

All concur except Green and Fallon, JJ., who dissent and vote to reverse in the following Memorandum.