People v. Windley

221 A.D.2d 577, 634 N.Y.S.2d 10, 1995 N.Y. App. Div. LEXIS 11960

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Patterson, J.), rendered April 21, 1994, convicting him of robbery in the first degree, robbery in the second degree, and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The court did not abuse its discretion when it refused to permit a 911 telephone operator to testify regarding a prior inconsistent statement made by the complainant as to the defendant’s height. While the complainant initially described the defendant as being six feet tall, he subsequently indicated that the defendant was approximately five feet eight inches tall. The initial description of the defendant as being six feet tall was given to a police officer as well as to the 911 telephone operator. That officer testified about the initial description and the complainant was cross-examined about the variance in his descriptions. Under the circumstances, where the inconsistency was placed before the jury, the court did not improvidently exercise its discretion in precluding the testimony of the operator (see, People v Piazza, 48 NY2d 151,164-165; People v Hayes, 191 AD2d 368, 370; People v Drake, 141 AD2d 560, 561). Bracken, J. P., Miller, Altman and Florio, JJ., concur.