OPINION OF THE COURT
On September 25, 1990, Deputy Sheriff Sharon Buddies, acting as an undercover officer, met defendant Milagros Gonzalez in front of an apartment shared by Gonzalez and defendant Sergio Torres. At that time, according to Buddies, she told Gonzalez that she was looking for someone who could sell her heroin. Gonzalez replied that she did not have any, but that she would have some later that evening.
The following day Buddies, fitted with a body wire, went to defendants’ apartment where she found both at home. At that time Buddies purchased two packets of heroin for $60. On October 1, 1990 Buddies, again fitted with a body wire, returned to defendants’ apartment where she purchased six packets of heroin for $180. As a consequence, defendants were indicted and charged with two counts of criminal sale of a controlled substance in the third degree, two counts of criminal possession of a controlled substance in the third degree, two counts of endangering the welfare of a child and five counts of unlawfully dealing with a child. Following a jury trial, Torres was convicted of criminal sale of a controlled substance in the third degree (two counts) and unlawfully dealing with a child, while Gonzalez was convicted of criminal sale of a controlled substance in the third degree. Thereafter, County Court sentenced Torres, as a second felony offender, to consecutive prison terms of 8V2 years to 17 years on each conviction of criminal sale of a controlled substance in the third degree, and to a concurrent term of 30 days on his conviction of unlawfully dealing with a child. Gonzalez was sentenced to a prison term of 5 to 15 years. Both defendants appeal.
Initially, we reject defendants’ contention that the verdict was against the weight of the evidence and/or was not supported by legally sufficient evidence (see, People v Bleakley, 69 NY2d 490). Defendants further contend that their convictions
It is now axiomatic that where the People are in possession of discoverable material, they are duty bound to preserve such evidence (see, People v Kelly, 62 NY2d 516) and, in the event such evidence is lost or destroyed, sanctions will be imposed (see, supra, at 520). Furthermore, the nature and extent of the sanction will depend upon the degree of the prosecutor’s bad faith, the importance of the evidence lost and the evidence of guilt adduced at trial (see, United States v Bryant, 439 F2d 642, 653; People v Close, 103 AD2d 970, 971), and while the form of the sanction is vested in the trial court’s sound discretion, the drastic remedy of dismissal should rarely be invoked (see, People v Kelly, supra, at 521).
The defense in this case was one of agency. In that regard, defendants testified that Buddies appeared to them to be addicted, ill and in need of a fix. They testified that they simply acted as Buddies’ agent and procured heroin for her from another person. Buddies, on the other hand, testified that, as to the first transaction, the heroin was on the premises and defendants simply retrieved it from another room and sold her two packets. As to the second transaction, Buddies testified that she asked for heroin and was told that defendants only had two packets, but if she would wait a minute, they could get more. When she indicated that the two packets were sufficient, she was told by defendants to wait a minute and they would get more, which they did. With regard to that transaction, Torres testified that he saw a person go by the house who he knew sold heroin and told Buddies to wait a minute, knowing that he could get her additional heroin from that individual. The tape recordings of the two transactions were not wholly audible and what could be heard was not inconsistent with either version of the events, thus posing a substantial credibility issue for resolution by the jury. It is in this context that we must view the September 25, 1990 conversation and the missing tape recording of that conversation.
The importance of which of those two versions of the September 25, 1990 meeting is correct is self-evident. Indeed, on summation the People stressed that Gonzalez stated on September 25 that "I’ll set you up. We don’t have anything right now, but we’ve got a shipment coming in.” And later in the summation: "I ask you when you’re considering whether there was an agency in this case, think of the salesman like behavior of both defendants. We’ve discussed it before * * * On September 25th, Defendant Gonzalez says, 'Come on back. We’ve got a good product. High quality stuff. It’s going to go fast.’ ”
The importance of the missing tape was not misperceived by County Court. Upon discovering that fact, the court immediately determined to preclude the two officers who monitored that tape recording from testifying as to what they had heard. County Court later determined that, in addition, it would give an adverse inference charge to the jury. The question on this appeal is whether these were sufficient sanctions. We think not.
Initially, we note that the tape did not disappear through neglect or inadvertence. It was deliberately destroyed by personnel of the Sheriff’s Department, and while we cannot say that the Deputy Sheriff was motivated by bad faith— indeed he claims he was not — we do not perceive that to be the controlling factor in our determination. As has been aptly
In the case at bar, defendants presented a viable defense of agency. Had their version of the September 25, 1990 conversation been corroborated by the missing tape, it would have severely undercut the People’s case. However, even assuming that the tape would have corroborated defendants’ version, it would not have, ipso facto, demonstrated their innocence and thus this is not an appropriate case for dismissal (compare, United States v Bryant, 439 F2d 642, supra; People v Saddy, 84 AD2d 175, supra). Nevertheless, given the importance of the September 25, 1990 conversation to defendants, we conclude that the only appropriate sanction is the preclusion of all testimony relating to that encounter.
Accordingly, there must be a reversal and a retrial on the remaining charges of the indictment. In light of this determination, we decline to address the remaining arguments advanced by defendants on appeal.
Mikoll, J. P., Yesawich Jr. and Mercure, JJ., concur.
Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Montgomery County for a new trial.
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Defendants made no complaint of the destroyed taped conversations that were made subsequent to the second sale and their arguments in that regard are unpreserved for appellate review (see, CPL 470.05 [2]; People v Jones, 175 AD2d 662, lv denied 78 NY2d 1128).