PEOPLE v. RODRIGUEZ (2008)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 29, 2005, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 25 years and 15 years, respectively, unanimously affirmed.

 The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning credibility.   The evidence established that one of the participants in the robbery displayed what appeared to be a firearm, and we reject defendant's arguments to the contrary.

 The trial court properly admitted, under the present sense impression exception to the hearsay rule, two nontestifying declarants' statements to 911 operators describing the victim's pursuit of defendant and his accomplice (see People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369 [1993] ).   Furthermore, the 911 calls were not testimonial within the meaning of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004], as the statements in the calls were primarily made “to enable police assistance to meet an ongoing emergency” (Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006];  see also People v. Smith, 37 A.D.3d 333, 334, 830 N.Y.S.2d 138 [2007], lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243 [2007] ).   Any error in failing to redact portions of the calls that related to events that occurred prior to the chase actually being witnessed by the callers was harmless under the standards for constitutional or nonconstitutional error (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).   The information at issue was cumulative to other evidence and had little bearing on defendant's guilt.

We perceive no basis for reducing the sentence.