People v. Mengstie

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

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 defendant 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.