PEOPLE v. BARNES (2008)

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June 26, 2007, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a prison term of 16 years to life, unanimously affirmed.

 The court properly exercised its discretion in admitting testimony regarding the contents of a 911 call.   There was no violation of defendant's right of confrontation, because the evidence was not offered for its truth (see Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 [1985] ), but for the legitimate non-hearsay purpose of completing the narrative and explaining why the police approached and then pursued defendant (see People v. Tosca, 98 N.Y.2d 660, 746 N.Y.S.2d 276, 773 N.E.2d 1014 [2002];  People v. Rivera, 96 N.Y.2d 749, 725 N.Y.S.2d 264, 748 N.E.2d 1060 [2001];  see also United States v. Reyes, 18 F.3d 65, 70-71 [1994] ).   The primary issue in the case was police credibility, and this testimony was necessary to prevent undue speculation and unfair inferences by the jury.   The court appropriately rejected defendant's suggestion that the testimony be limited to the officers' receipt of an unspecified 911 call, since this limitation would have placed a mystery before the jury and invited speculation.   Any prejudicial effect was minimized by the court's through limiting instructions, which the jury is presumed to have followed (see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] ).

 The court also properly exercised its discretion in denying defendant's request for an adverse inference charge based on the erasure of the 911 tape.   There was no bad faith on the part of the People, who made reasonable efforts to obtain the tape before it was erased, there was no prejudice to defendant, who received a copy of the Sprint report of the call, and there is nothing to support defendant's claim that the actual recording would have had any additional exculpatory or impeachment value (see e.g. People v. Diaz, 47 A.D.3d 500, 849 N.Y.S.2d 256 [2008], lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 488, 890 N.E.2d 251 [2008] ).