| People v Barnes |
| 2008 NY Slip Op 09710 [57 AD3d 289] |
| December 11, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anthony Barnes, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel),for respondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 26, 2007,convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree,and sentencing him, as a persistent violent felony offender, to a prison term of 16 years to life,unanimously affirmed.
The court properly exercised its discretion in admitting testimony regarding the contents of a911 call. There was no violation of defendant's right of confrontation, because the evidence wasnot offered for its truth (see Tennessee v Street, 471 US 409 [1985]), but for thelegitimate nonhearsay purpose of completing the narrative and explaining why the policeapproached and then pursued defendant (see People v Tosca, 98 NY2d 660 [2002];People v Rivera, 96 NY2d 749 [2001]; see also United States v Reyes, 18 F3d65, 70-71 [1994]). The primary issue in the case was police credibility, and this testimony wasnecessary to prevent undue speculation and unfair inferences by the jury. The court appropriatelyrejected defendant's suggestion that the testimony be limited to the officers' receipt of anunspecified 911 call, since this limitation would have placed a mystery before the jury andinvited speculation. Any prejudicial effect was minimized by the court's thorough limitinginstructions, which the jury is presumed to have followed (see People v Davis, 58 NY2d1102, 1104 [1983]).
The court also properly exercised its discretion in denying defendant's request for an adverseinference charge based on the erasure of the 911 tape. There was no bad faith on the part of thePeople, who made reasonable efforts to obtain the tape before it was erased, there was noprejudice to defendant, who received a copy of the Sprint report of the call, and there is nothing[*2]to support defendant's claim that the actual recording wouldhave had any additional exculpatory or impeachment value (see e.g. People v Diaz, 47 AD3d 500[2008], lv denied 10 NY3d 861 [2008]). Concur—Andrias, J.P., Saxe, Sweeny,Catterson and Moskowitz, JJ.