People v. Matyszewski

47 A.D.3d 646, 848 N.Y.S.2d 542

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered September 20, 2005, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The Supreme Court did not improvidently exercise its discretion in refusing to admit into evidence a recording of the defendant’s telephone call to 911 as an exception to the hearsay rule. The record indicates that the defendant made his exculpatory statements to the 911 operator after he had the time to reflect and possibly fabricate a story (see People v Sostre, 51 NY2d 958, 960 [1980]; People v Dalton, 217 AD2d 587, 588 [1995], affd sub nom. People v Vasquez, 88 NY2d 561 [1996]; People v Wilson, 123 AD2d 457, 457-458 [1986]). Accordingly, the recording was not admissible into evidence either as an excited utterance or a present sense impression (see People v Vasquez, 88 NY2d 561, 574-575 [1996]; People v Dalton, 217 AD2d at 588). Spolzino, J.P., Ritter, Miller and Dickerson, JJ., concur.