OPINION OF THE COURT
Memorandum.On defendant Louis Riley’s appeal, the order, insofar as appealed from, should be affirmed. The People’s appeal should be dismissed upon the ground that the modification by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to . . . modification” (CPL 450.90 [2] [a]).
A few months before trial, the copper pipes defendant was accused of stealing were returned to their rightful owner without the notice to defendant required by Penal Law § 450.10. Defendant argues that the defense team was prejudiced as a result *946because deprived of an opportunity to examine the pipes and independently assess their value; he seeks reversal and a new trial on account of the trial court’s denial of his request for an adverse inference instruction as a sanction for the unnoticed return of the stolen pipes.
But a sanction for the return of stolen property without the requisite notice is required only when the district attorney does not demonstrate an absence of prejudice (see Penal Law § 450.10 [10]). Further, “the choice of ‘appropriate’ action is committed to the sound discretion of the trial court” (People v Kelly, 62 NY2d 516, 521 [1984]). Here, the People advised defense counsel to arrange a mutually convenient time to examine the copper pipes about six weeks before they were returned, and defense counsel did not follow up; the police retained a representative sample, which was admitted into evidence without objection; and defense counsel was provided with nearly 200 photographs of the copper pipes and the buildings. As a result, the trial court did not abuse its discretion by determining that defendant did not suffer prejudice and declining to impose a sanction.
Regarding the People’s appeal, the dissent concludes that we may “review[ ] a legal issue, with respect to a ruling or instruction of a criminal court during a trial or proceeding where, as here, the question was reached by the Appellate Division in the exercise of its discretionary power to reach an unpreserved legal issue” (dissenting op at 948). This notion is, to say the least, novel as it is flies in the face of the Criminal Procedure Law and thus four decades’ worth of our precedent (see e.g. People v Albro, 52 NY2d 619, 623 n [1981] [noting that a recent amendment to CPL 450.90 (2) (a), while providing more flexibility in some respects, “does not operate to provide an appeal where the reversal or modification was at least partially based upon discretion exercised in the interests of justice”]; People v Baumann & Sons Buses, Inc., 6 NY3d 404, 407 [2006] [“As the intermediate appellate court reversed the conviction on the basis of an unpreserved error, and therefore as a matter of discretion in the interest of justice, its order is not appealable to this Court”]).
Just two years ago, in People v Caban (14 NY3d 369 [2010]), we recognized that “under our precedents, an Appellate Division reversal that is based on an unpreserved error is considered an exercise of the Appellate Division’s interest of justice power, not reviewable in our Court”; therefore, “if defendant [Caban] *947failed to preserve the alleged error, she would benefit from her mistake, for we would be required to dismiss the People’s appeal” (id. at 373 [emphasis added]). This is, of course, precisely the situation we find ourselves in here, where—unlike Ca-ban—we all agree that the alleged error was, in fact, unpreserved.