People v. Stewart

265 A.D.2d 586, 698 N.Y.S.2d 37, 1999 N.Y. App. Div. LEXIS 10815

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered September 15, 1997, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court’s Sandoval ruling balanced the relevant factors and formulated an appropriate compromise, and was not an improvident exercise of discretion (see, People v Walker, 83 NY2d 455; People v Pavao, 59 NY2d 282; People v Sandoval, 34 NY2d 371).

The defendant also claims that the court improperly excluded from evidence an audiotape recording of a telephone call to the 911 emergency number in which the caller named persons other than the defendant as the perpetrators of the crime.

However, after a hearing to determine the exact dialogue of the 911 call, the declarant admitted that she did not remember who told her that “Super John and Travis” were the shooters, nor could she state whether the persons who gave her those names actually witnessed the shooting. Under these circumstances, the court properly excluded the tape (see, People v Matos, 107 AD2d 823; People v Caviness, 38 NY2d 227).

The defendant’s remaining contentions are without merit. Santucci, J. P., Thompson, Sullivan and Smith, JJ., concur.