People v Barnes

People v Barnes 2008 NY Slip Op 09710 [57 AD3d 289] December 11, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Anthony Barnes, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.

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 a 911 call. There was no violation of defendant's right of confrontation, because the evidence was not offered for its truth (see Tennessee v Street, 471 US 409 [1985]), but for the legitimate nonhearsay purpose of completing the narrative and explaining why the police approached 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 F3d 65, 70-71 [1994]). The primary issue in the case was police credibility, and this testimony was necessary to prevent undue speculation and unfair inferences by the jury. The court appropriately rejected defendant's suggestion that the testimony be limited to the officers' receipt of an unspecified 911 call, since this limitation would have placed a mystery before the jury and invited speculation. Any prejudicial effect was minimized by the court's thorough limiting instructions, which the jury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]).

The court also properly exercised its discretion in denying defendant's request for an adverse inference charge based on the erasure of the 911 tape. There was no bad faith on the part of the People, who made reasonable efforts to obtain the tape before it was erased, there was no prejudice 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 would have 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.