The People of the State of New York, Respondent, v. Daniel Vincente, Appellant

The People of the State of New York, Respondent, v Daniel Vincente, Appellant. [MAJORITY] Judgment, Supreme Court, New York County (Robert M. Haft, J.), rendered May 16, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fifth degrees, and which sentenced him to concurrent prison terms of 6 to 12 years, 6 to 12 years and ZVi to 7 years, respectively, unanimously affirmed. Defendant was arrested after an undercover police officer observed him on the street handing vials over to another in exchange for money. During deliberations, the jury asked whether it should consider the fact that no currency had been offered into evidence. The court, reiterating the substance of its prior instruction, told the jury to consider "the evidence in the case and the lack of evidence” in determining whether the People had proved their case beyond a reasonable doubt, and properly declined to instruct, as requested by defense counsel, that any inference could be drawn from the fact that no currency was offered into evidence. An instruction along these lines could have led the jury to draw a negative inference about the absence of the currency, a factor that tended neither to corroborate nor contradict the People’s case (see, People v Steinberg, 170 AD2d 50, 71-72, lv granted 78 NY2d 1081). Concur—Sullivan, J. P., Milonas, Kupferman, Ross and Smith, JJ.