People v. Mengstie

Appellate Division of the Supreme Court of New York

People v. Mengstie

260 A.D.2d 264, 690 N.Y.S.2d 11, 1999 N.Y. App. Div. LEXIS 4168

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 22, 1999

StatusPublished

This text of 260 A.D.2d 264 (People v. Mengstie) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Mengstie, 260 A.D.2d 264, 690 N.Y.S.2d 11, 1999 N.Y. App. Div. LEXIS 4168 (N.Y. Ct. App. 1999).

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Opinion

—Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered May 5, 1994, convicting defendant, after a jury trial, of two counts of robbery in the first degree and two counts of robbery in the second degree, and sentencing him, as a second felony offender, to two concurrent terms of 5V2 to 11 years concurrent with two concurrent terms of 4 to 8 years, unanimously affirmed.

The court properly declined defendant’s request for an adverse inference charge based on the destruction of the 911 tape, since there was no lack of diligence by the People and de[265]*265fendant was not prejudiced (see, People v Daniels, 254 AD2d 54). Moreover, the only portion of the erased tape that would have had any significance in the context of the issues raised at trial was the dispatcher’s announcement of the time, and since this was a statement of a person not called as a witness, it did not constitute Rosario material (see, People v Pabon, 213 AD2d 289, Iv denied 86 NY2d 739). We also conclude that defendant’s cross-examination of a police witness opened the door to the People’s elicitation oh redirect of the arrest time contained in the Sprint report (see, People v Wortherly, 68 AD2d 158, 160-163). Concur — Ellerin, P. J., Nardelli, Williams and Rubin, JJ.

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—Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered May 5, 1994, convicting defendant, after a jury trial, of two counts of robbery in the first degree and two counts of robbery in the second degree, and sentencing him, as a second felony offender, to two concurrent terms of 5V2 to 11 years concurrent with two concurrent terms of 4 to 8 years, unanimously affirmed.

The court properly declined defendant’s request for an adverse inference charge based on the destruction of the 911 tape, since there was no lack of diligence by the People and de[265]*265fendant was not prejudiced (see, People v Daniels, 254 AD2d 54). Moreover, the only portion of the erased tape that would have had any significance in the context of the issues raised at trial was the dispatcher’s announcement of the time, and since this was a statement of a person not called as a witness, it did not constitute Rosario material (see, People v Pabon, 213 AD2d 289, Iv denied 86 NY2d 739). We also conclude that defendant’s cross-examination of a police witness opened the door to the People’s elicitation oh redirect of the arrest time contained in the Sprint report (see, People v Wortherly, 68 AD2d 158, 160-163). Concur — Ellerin, P. J., Nardelli, Williams and Rubin, JJ.

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Bluebook (online)

260 A.D.2d 264, 690 N.Y.S.2d 11, 1999 N.Y. App. Div. LEXIS 4168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mengstie-nyappdiv-1999.

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