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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Kevin HARVEY, Defendant-Appellant.  (Appeal No. 2.)

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, FAHEY, AND PINE, JJ. Donald M. Thompson, Rochester, for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.

 On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2) ] ) and reckless endangerment in the first degree (§ 120.25), defendant contends that Supreme Court erred in admitting in evidence a recording and transcript of a 911 call identifying defendant as the perpetrator in violation of his right of confrontation.   We reject that contention inasmuch as the 911 call was not testimonial in nature (see Davis v. Washington, 547 U.S. 813, 826-827, 126 S.Ct. 2266, 165 L.Ed.2d 224;  see also People v. Nieves-Andino, 9 N.Y.3d 12, 16, 840 N.Y.S.2d 882, 872 N.E.2d 1188).   We agree with defendant, however, that the court erred in admitting in evidence the preliminary hearing testimony of the victim.   Although the People demonstrated due diligence in attempting to locate the victim for trial (see People v. Arroyo, 54 N.Y.2d 567, 571, 446 N.Y.S.2d 910, 431 N.E.2d 271, cert. denied 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855), the court unduly restricted defense counsel's cross-examination of the victim at the preliminary hearing, and thus the admission in evidence of the preliminary hearing testimony deprived defendant of his right of confrontation (see People v. Simmons, 36 N.Y.2d 126, 130-131, 365 N.Y.S.2d 812, 325 N.E.2d 139).   We therefore reverse the judgment and grant a new trial on counts one and four of the indictment.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts one and four of the indictment.