PEOPLE v. BOATENG (2018)

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered July 8, 2014, as amended July 21, 2018, convicting defendant, after a jury trial, of petit larceny, and sentencing him to a term of one year, unanimously affirmed.

The court providently exercised its discretion in declining to impose any sanction for the People's loss of a recording of a 911 call.  The record supports the court's finding that the recording was not Rosario material (see CPL 240.45;  People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961], cert denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 [1961] ), because it was “made by an unknown non-witness on behalf of the non-English-speaking complainant” and “the record does not support defendant's contention that the unknown non-witness was actually translating the complainant's words” (People v. Pabon, 213 A.D.2d 289, 624 N.Y.S.2d 149 [1st Dept. 1995], lv denied 86 N.Y.2d 739, 631 N.Y.S.2d 619, 655 N.E.2d 716 [1995] ).  In any event, even if the recording could be viewed as Rosario material, there was no ground for a sanction, because the loss was inadvertent and defendant made no showing of prejudice, in light of the availability of the Sprint report (see e. g. People v. Diaz, 47 A.D.3d 500, 500–01, 849 N.Y.S.2d 256 [1st Dept. 2008], lv denied 10 N.Y.3d 861, 860 N.Y.S.2d 488, 890 N.E.2d 251 [2008] ).

The court also providently exercised its discretion in precluding defendant from eliciting his hearsay postarrest statement.  Defendant's door-opening theories of admissibility are unpersuasive (see People v. Massie, 2 N.Y.3d 179, 180–81, 777 N.Y.S.2d 794, 809 N.E.2d 1102 [2004].  Defendant did not establish a need to correct any allegedly misleading impression by eliciting hearsay, rather than by cross-examining the People's witnesses or otherwise relying on admissible evidence.