PEOPLE v. MENGSTIE (1999)

Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered May 5, 1994, convicting defendant, after a jury trial, of two counts of robbery in the first degree and two counts of robbery in the second degree, and sentencing him, as a second felony offender, to two concurrent terms of 5 1/212 to 11 years concurrent with two concurrent terms of 4 to 8 years, unanimously affirmed.

 The court properly declined defendant's request for an adverse inference charge based on the destruction of the 911 tape, since there was no lack of diligence by the People and defendant was not prejudiced (see, People v. Daniels, 254 A.D.2d 54, 681 N.Y.S.2d 483).   Moreover, the only portion of the erased tape that would have had any significance in the context of the issues raised at trial was the dispatcher's announcement of the time, and since this was a statement of a person not called as a witness, it did not constitute Rosario material (see, People v. Pabon, 213 A.D.2d 289, 624 N.Y.S.2d 149, lv. denied 86 N.Y.2d 739, 631 N.Y.S.2d 619, 655 N.E.2d 716).   We also conclude that defendant's cross-examination of a police witness opened the door to the People's elicitation on redirect of the arrest time contained in the Sprint report (see, People v. Wortherly, 68 A.D.2d 158, 160-163, 416 N.Y.S.2d 594).

MEMORANDUM DECISION.