People v. Johnson

213 A.D.2d 241, 624 N.Y.S.2d 123, 1995 N.Y. App. Div. LEXIS 2804

Opinion

—Judgment, Supreme Court, New York County (Edward Sheridan, J.), rendered January 8, 1993, convicting defendant, after a jury trial, of attempted burglary in the third degree, and possession of burglar’s tools, and sentencing him, as a second felony offender, to concurrent terms of 2 to 4, and 1 year, respectively, unanimously affirmed.

Assuming, arguendo, that the court improperly permitted admission of a 911 tape containing prior consistent statements of a witness who testified at trial where there was no claim of recent fabrication (People v Davis, 44 NY2d 269, 277; see, People v Nicholson, 168 AD2d 574, 575, lv denied 77 NY2d 964), in light of the overwhelming proof of the defendant’s guilt, the error was harmless (People v Crimmins, 36 NY2d 230). Concur—Murphy, P. J., Rosenberger, Rubin, Ross and Tom, JJ.