
    The People of the State of New York, Respondent, v Pedro Rodriguez, Also Known as Peter Diamond, Appellant.
    [773 NYS2d 556]
   Judgments, Supreme Court, New York County (Ronald Zweibel, J.), rendered June 28, 2001, 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 degree, and convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously affirmed.

The court properly exercised its discretion in declining to preclude, as a sanction for an alleged late disclosure, certain photographs of defendant taken during his arrest processing. The pictures depicted him as wearing a distinctive jacket that became relevant to the case when defendant testified that at the time of his arrest he was wearing attire different from that depicted in the photograph. There was no indication of bad faith, and there was no genuine surprise because defendant, the subject of an arrest photograph and not a surveillance photograph, would have known that he had been photographed while wearing the jacket in question (see CPL 240.70 [1]; People v Kelly, 62 NY2d 516 [1984]; People v Garayua, 268 AD2d 283 [2000], lv denied 95 NY2d 796 [2000]). Concur—Nardelli, J.P., Tom, Andrias, Saxe and Marlow, JJ.  