(dissenting in part). I would find that the trial court erred in failing to give the requested adverse inference instruction as a minimal sanction for the failure to turn over the lost “scratch 61” report. This error was harmless as to Selbin Martinez in light of the overwhelming evidence of his guilt. However, given that the evidence against Christopher Martinez was far from overwhelming, the error cannot be considered harmless as to him. Therefore, I would reverse Christopher’s conviction.
Upon discovering that the police officer had filled out a handwritten “scratch 61” that had not been turned over to the *569prosecution and which could not be located, defense counsel requested that the court give the jury an adverse inference instruction. The court denied the request. Defendants argue that the “scratch 61” was Rosario material and that, had it been produced, as is required, it would have provided additional grounds for cross-examination of complainant.
The People have an obligation to preserve Rosario material and to produce it upon demand (see People v Martinez, 71 NY2d 937, 940 [1988]). “If the People fail to exercise care to preserve it and defendant is prejudiced by their mistake, the court must impose an appropriate sanction” (Martinez, 71 NY2d at 940 [emphasis added]; see also People v James, 93 NY2d 620, 644 [1999]). When deciding upon a sanction, “the court’s attention should focus primarily on the overriding need to eliminate prejudice to the defendant” (Martinez, 71 NY2d at 940).
As the majority points out, the per se reversal (or Ranghelle) rule never applied to lost Rosario material (see majority op at 563). Rather, “some showing of prejudice is essential” in cases where Rosario material has not been appropriately preserved (see People v Joseph, 86 NY2d 565, 571 [1995]). However, we have also observed that, when the document at issue is in fact unavailable, it may be difficult for the defendant to articulate a concrete claim of prejudice, since he cannot know what information the lost document contained (see Joseph, 86 NY2d at 571). We therefore recognized that some degree of conjecture is inherent in an objection on this basis (see Joseph, 86 NY2d at 571). “Since it was the conduct of the police that resulted in the loss of the [document] and made it impossible to know whether the information [it] contained was consistent with the People’s position at trial, the People cannot now be heard to complain that the defendant’s showing of prejudice is not sufficiently definite and clear” (Joseph, 86 NY2d at 571 [citation omitted]).
The majority opinion cannot be squared with this reasoning. The majority simply concludes that, “it is difficult to imagine how defendants might have been prejudiced” (majority op at 567). This reflects a deficit of imagination: if, for example, the “scratch 61” contained a description of the gunman that did not match Christopher, the People’s case against him would have crumbled. Moreover, the majority’s ruling provides absolutely no incentive to retain these types of forms. Given the loss of the material, defendants are left to speculate as to what *570value that document may have held. It simply is not a satisfactory result to penalize defendant for being unable to establish a concrete injury. Particularly in this case, where the document was prepared between the two defendants’ arrests and complainant’s identification of Christopher was so delayed, the handwritten complaint report might have been extremely useful. Moreover, the evidence against Christopher was thin and the sanction requested was a modest one. The trial court did not invoke lack of prejudice as a basis for its denial; it merely stated “there is a reason ... he doesn’t have it anymore.” Under the circumstances, it was an abuse of discretion for the trial court to deny the requested charge. Similar to the situation presented in Martinez, although the prospect that Christopher suffered prejudice by the loss of the “scratch 61” might have been “remote,” that possibility would have been obviated by the requested jury instruction (see 71 NY2d at 940).
Here, identification was the central issue. The only evidence against Christopher, aside from the nonincriminating fact that he is Selbin’s brother, was complainant’s testimony identifying Christopher by his “awkward” way of jumping back. The gunman’s only feature that was not covered by a mask were his eyes, which complainant specifically testified he did not look at because he was focusing on the gun. The gunman did not make a sound, nor did he sustain any injury that linked him to the incident. Moreover, despite complainant’s claim that he knew the gunman was Christopher, he did not provide Christopher’s name to the police until after Selbin’s arrest. In the absence of overwhelming evidence, “there is no occasion for consideration of any doctrine of harmless error” (People v Crimmins, 36 NY2d 230, 241 [1975]).
In People v Christopher Martinez: Judges Graffeo, Smith and Pigott concur with Judge Read; Chief Judge Lippman dissents and votes to reverse in an opinion in which Judges Rivera and Abdus-Salaam concur.Order affirmed.
In People v Selbin Martinez-. Judges Graffeo, Smith and Pigott concur with Judge Read; Chief Judge Lippman concurs in result in a separate opinion in which Judges Rivera and Abdus-Salaam concur.Order affirmed.