| People v Melendez |
| 2010 NY Slip Op 02064 [71 AD3d 530] |
| March 18, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v PedroMelendez, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Jennifer Marinaccio of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered March 19, 2008,convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him to aterm of seven years, unanimously affirmed.
Since defendant's cross-examination of one of the victims raised issues regarding the detailsof the descriptions of the perpetrators that the victim gave to the police, and whether the victimcould accurately recall those descriptions, the court properly permitted the People to elicit thedescriptions from a detective (seePeople v Figueroa, 35 AD3d 204 [2006], lv denied 8 NY3d 880 [2007];People v Griffin, 173 AD2d 216 [1991], lv denied 78 NY2d 1076 [1991]; seealso People v Rice, 75 NY2d 929, 931 [1990]). In any event, any error in permitting thedetective's testimony as to the descriptions was harmless (see People v Crimmins, 36NY2d 230 [1975]). There is no reasonable possibility that the verdict was affected by thecircumstance that the jury heard both the victim and the detective testify as to the victim'sdescription of defendant.
Defendant is not entitled to summary reversal as the result of the People's loss of asurveillance tape and 911 tape that were admitted at trial (see People v Yavru-Sakuk, 98NY2d 56 [2002]). The record establishes that the surveillance tape had little value because it didnot show anyone's faces, and a full transcript of the 911 call is in the record. Furthermore,defendant has not identified any issue that this Court could not decide without viewing thevideotape or listening to the audiotape.
Defendant did not preserve any of his challenges to the prosecutor's summation and thecourt's charge, including his constitutional claims, and we decline to review them in the interest[*2]of justice. As an alternative holding, we find no basis forreversal.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Saxe,Nardelli, Abdus-Salaam and RomÁn, JJ.