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People v. Heredia

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 28, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ULYSES HEREDIA, DEFENDANT-APPELLANT.

Judgment, Supreme Court, Bronx County (Robert E. Torres, J.), rendered May 15, 2007, convicting defendant, after a jury trial, of assault in the second degree and criminal impersonation in the first degree, and sentencing him to concurrent terms of 21/2 years and 1 to 3 years, respectively, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Mazzarelli, Buckley, Abdus-Salaam, JJ.

1294/06

The court properly exercised its discretion in denying defendant's request for a sanction resulting from the unavailability of the tape recording of the victim's 911 call inasmuch as defendant has not established that he was prejudiced by the absence of the tape (see e.g. People v McDermott, 279 AD2d 361 [2001], lv denied 96 NY2d 803 [2001]). Defendant's argument that the tape may have revealed discrepancies in the details of the occurrence which were presented by the victims at trial does not demonstrate prejudice in light of the strong and convincing evidence of an assault and criminal impersonation of an officer. Further, the Sprint printout relating to the crime was available to defendant for impeachment use. Thus, the trial court was not required to impose a sanction (compare People v Wallace, 76 NY2d 953 [1990]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090528

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