| People v Hammons |
| 2009 NY Slip Op 09918 [68 AD3d 1800] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Thomas L.Hammons, Jr., Appellant. |
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Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered October 18, 2005. The judgment convicted defendant, upon a jury verdict, of course ofsexual conduct against a child in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcourse of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a])and endangering the welfare of a child (§ 260.10 [1]). Defendant contends that SupremeCourt erred in permitting the People on redirect examination of the complainant to elicitevidence with respect to defendant's telephone conversation with the complainant that had beenrecorded by the police but subsequently had been suppressed. Even assuming, arguendo, thatdefendant preserved his contention for our review, we conclude that any error with respect to theadmission of the testimony on redirect is harmless. The proof of defendant's guilt isoverwhelming, and there is no significant probability that defendant would have been acquittedbut for the alleged error (see generally People v Crimmins, 36 NY2d 230, 241-242[1975]).
Contrary to defendant's further contention, the court did not abuse its discretion in refusingto give an adverse inference charge concerning the failure of the police to record defendant'sinterrogation. It is well settled that the police have no obligation to record an interrogation (see People v Childres, 60 AD3d1278, 1279 [2009], lv denied 12 NY3d 913 [2009]), and that the failure to record adefendant's interrogation electronically does not constitute a denial of due process (see People v Lomack, 63 AD3d1658 [2009], lv denied 13 NY3d 798 [2009]; People v Malave, 52 AD3d 1313, 1315 [2008], lv denied11 NY3d 790 [2008]). Present—Scudder, P.J., Hurlbutt, Smith and Centra, JJ.