| People v Wynn |
| 2008 NY Slip Op 07432 [55 AD3d 1378] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Samuel Wynn,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered December 29,2006. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following a jury trial, of robbery in thesecond degree (Penal Law § 160.10 [1]), defendant contends that County Court erred inrefusing to suppress evidence allegedly seized as the result of an unlawful entry into his apartment,where he was arrested. We reject that contention. The People established that there were exigentcircumstances justifying the warrantless entry into the apartment (cf. People v Guins, 165AD2d 549, 552-554 [1991], lv denied 78 NY2d 1076 [1991]; see generally People vKnapp, 52 NY2d 689, 695-696 [1981]). We further reject the contention of defendant that thecourt abused its discretion in refusing to reopen the suppression hearing following the trial testimony of apolice officer that appeared to be inconsistent with his testimony at the suppression hearing. Defendantfailed to establish that his motion to reopen the suppression hearing was based on additional evidencethat could not have been discovered with reasonable diligence prior to the hearing (see CPL710.40 [4]; People v Washington, 238 AD2d 43, 47-48 [1998], lv denied 91 NY2d1014 [1998]). In addition, the court properly determined that the showup identification procedure wasnot unduly suggestive (see People v Clark,26 AD3d 743 [2006], lv denied 7 NY3d 754 [2006]; see also People v Siler, 45 AD3d 1403[2007], lv denied 10 NY3d 771 [2008]).
Contrary to the further contention of defendant, his right of confrontation was not violated when thecourt admitted in evidence the tape recording of the 911 telephone call of the victim's manager. Thetape recording was not offered for the truth of the matter asserted and thus it was not hearsay (see generally People v Voymas, 39 AD3d1182, 1184 [2007], lv denied 9 NY3d 852 [2007]), nor was the 911 telephone calltestimonial in nature (see People v Marino,21 AD3d 430 [2005], lv denied 5 NY3d 883 [2005], cert denied 548 US908 [2006]). Also contrary to defendant's contention, the People complied with CPL 240.45 (1) (b)with respect to the victim's criminal history and, in any event, the record establishes that defendant was"given a meaningful opportunity to use . . . exculpatory material to cross-examine the[victim]" (People v Cortijo, 70 NY2d 868, 870 [1987]). We reject defendant's furthercontention that the [*2]first and second counts of the indictment weremultiplicitous. The second count of the indictment, under Penal Law §§ 20.00 and 160.10(2) (b), has an element not included in the first count of the indictment, under Penal Law §160.10 (1), inasmuch as the second count charges that either defendant or his accomplice displayed afirearm during the robbery or the immediate flight therefrom (see generally People v Arnold, 15 AD3d 783, 785 [2005], lvdenied 4 NY3d 851 [2005]). The verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh orsevere. We note, however, that the certificate of conviction incorrectly reflects that defendant wassentenced as a second felony offender, and it must therefore be amended to reflect that he wassentenced as a violent felony offender (seegenerally People v Saxton, 32 AD3d 1286 [2006]). We have considered defendant'sremaining contention and conclude that it is without merit. Present—Martoche, J.P., Lunn, Faheyand Pine, JJ.