| People v Torres |
| 2018 NY Slip Op 08337 [167 AD3d 665] |
| December 5, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Raymond Torres, Appellant. |
Paul Skip Laisure, New York, NY (Melissa Lee of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Victor Barall, andTerrence F. Heller of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (SuzanneM. Mondo, J.), rendered July 13, 2016, convicting him of burglary in the third degree and grandlarceny in the third degree, upon a jury verdict, and imposing sentence, and (2) a resentence ofthe same court dated August 2, 2016. The appeal brings up for review the denial, after a hearing,of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment and resentence are affirmed.
The defendant was arrested after police officers stopped a vehicle in which he was apassenger after receiving a radio transmission regarding a burglary committed at a bodega. Thedefendant's contention that the police officers lacked reasonable suspicion to stop the vehicle wasnot asserted at the suppression hearing and, thus, is unpreserved for appellate review (seeCPL 470.05 [2]; People v Brooks,11 AD3d 705 [2004]). In any event, the contention is without merit. The police officers hadreasonable suspicion to stop the vehicle based upon the radio transmission indicating the typeand color of the vehicle driven by the perpetrators of the burglary (see People v Ceruti, 133 AD3d610, 611 [2015]). Moreover, the vehicle was stopped in close geographical and temporalproximity to the crime, as the stop occurred about five minutes after the transmission wasreceived, only about 15 blocks from the scene of the crime, and in the early morning hours, whentraffic conditions were very light (seePeople v Young, 68 AD3d 1761 [2009]).
There is no merit to the defendant's claim of ineffective assistance of counsel based upon hiscounsel's failure to move to reopen the suppression hearing (see People v Gray, 27 NY3d 78 [2016]; People v Robles, 116 AD3d 1071[2014]).
The defendant's contention that the Supreme Court erred in admitting into evidence at thetrial a surveillance video depicting the burglary is unpreserved for appellate review (seeCPL 470.05 [2]). In any event, the contention is without merit. The video was properlyauthenticated by the testimony of an employee of the bodega who was familiar with thesurveillance system, as well as the testimony of the police officer who obtained a copy of thevideo recording and vouchered it (see People v Patterson, 93 NY2d 80, 84 [1999]; People v Costello, 128 AD3d 848[2015]).
[*2] We agree with the Supreme Court'sdetermination to admit into evidence at the trial a recording of a 911 emergency telephone callmade by an unidentified caller. The recording was admissible under the present sense impressionexception to the hearsay rule (see People v Buie, 86 NY2d 501, 506 [1995]; People v Pooler, 98 AD3d 751,752 [2012]; People v Bradley, 73AD3d 1198 [2010]; People vOsbourne, 69 AD3d 764, 765 [2010]). Moreover, the admission of the recording did notviolate the defendant's right of confrontation. Since the primary purpose of the statements by theunidentified caller was to obtain an emergency response to a burglary in progress, the statementswere not testimonial in nature (seePeople v Conyers, 33 AD3d 929, 930 [2006]). The defendant's claim that the recordingwas improperly admitted into evidence because it was not authenticated is unpreserved forappellate review (see People v Hutchinson, 255 AD2d 396 [1998]). In any event, hiscontention is without merit. The recording was properly authenticated by a 911 technician andoperator, who testified that all 911 calls are recorded, kept in the regular course of business, anddocumented by date, time, and location of the incident. Further, that person testified that, afterretrieving the recording, she emailed a copy to the People. She testified that she had listened bothto the email copy sent to the People and the copy that was introduced at trial, and that the copyintroduced at trial was a fair and accurate representation of the copy she emailed to the People(see People v Patterson, 93 NY2d at 84; People v Ely, 68 NY2d 520, 527-528[1986]). Rivera, J.P., Dillon, Cohen and Iannacci, JJ., concur.