People v Cato

2005 NYSlipOp 08133

October 31, 2005

Appellate Division, Second Department

The People of the State of New York, Respondent, v Calvin Cato, Appellant.

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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered February 11, 2004, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the admission into evidence of a tape of a 911 call in which the caller described the beating of the complainants as it occurred violated his rights under the Confrontation Clause. However, the specific argument that the 911 tape was "testimonial" under Crawford v Washington (541 US 36 [2004]) was not raised in the Supreme Court and, therefore, is not preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]; People v Udzinski, 146 AD2d 245 [1989]). In any event, there is no merit to the argument (see Crawford v Washington, supra; People v Marino, 21 AD3d 430 [2005]; People v Coleman, 16 AD3d 254 [2005], lv denied 5 NY3d 805 [ 2005]). S. Miller, J.P., Krausman, Rivera and Covello, JJ., concur.