PEOPLE v. SMITH (1999)

 Defendant appeals from a judgment convicting him following a jury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1] ) and assault in the first degree (Penal Law § 120.10[4] ).  The conviction stems from an incident that occurred during the early morning hours of July 29, 1994, when defendant broke into the apartment of his former girlfriend and stabbed her in the left temple area with a pair of scissors.   About a month after the incident, the victim received a number of hang-up telephone calls and threats.   Fearing for her safety, she contacted the Monroe County District Attorney's Office.   An investigator suggested that a recording device could be hooked up to her telephone.   She agreed to have it installed.   At trial, she testified about taped telephone conversations with defendant during which she asked him why he had tried to kill her.   The audiotapes of those conversations were properly admitted in evidence.   The record supports Supreme Court's determination that the victim was not acting as an agent of law enforcement when recording those conversations (see, People v. Henriquez, 214 A.D.2d 485, 486, 625 N.Y.S.2d 526, lv. denied 86 N.Y.2d 873, 635 N.Y.S.2d 954, 659 N.E.2d 777;  People v. Dabney, 75 A.D.2d 822, 823, 427 N.Y.S.2d 488).

 Defendant concedes that he failed to preserve for our review his contention that the conviction of assault in the first degree was barred by the merger doctrine (see, CPL 470.05[2];  People v. Johnson 204 A.D.2d 1024, 612 N.Y.S.2d 528, lv. denied 84 N.Y.2d 827, 617 N.Y.S.2d 147, 641 N.E.2d 168), and we decline to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a];  People v. Redd, 234 A.D.2d 127, 128, 651 N.Y.S.2d 454, lv. denied 89 N.Y.2d 1040, 659 N.Y.S.2d 870, 681 N.E.2d 1317;  People v. Geer, 188 A.D.2d 1014, 592 N.Y.S.2d 995, lv. denied 81 N.Y.2d 1073, 601 N.Y.S.2d 592, 619 N.E.2d 670).

Judgment unanimously affirmed.

MEMORANDUM: