PEOPLE v. HEREDIA (2009)

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 21/212 years and 1 to 3 years, respectively, unanimously affirmed.

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 A.D.2d 361, 719 N.Y.S.2d 76 [2001], lv. denied 96 N.Y.2d 803, 726 N.Y.S.2d 381, 750 N.E.2d 83 [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 N.Y.2d 953, 563 N.Y.S.2d 722, 565 N.E.2d 471 [1990] ).