PEOPLE v. CATO

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

The PEOPLE, etc., respondent, v. Calvin CATO, appellant.

Decided: October 31, 2005

SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, and JOSEPH COVELLO, JJ. Lynn W.L. Fahey, New York, N.Y. (Winston McIntosh of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered February 11, 2004, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the admission into evidence of a tape of a 911 call in which the caller described the beating of the complainants as it occurred violated his rights under the Confrontation Clause.   However, the specific argument that the 911 tape was “testimonial” under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 was not raised in the Supreme Court and, therefore, is not preserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   In any event, there is no merit to the argument (see Crawford v. Washington, supra;  People v. Marino, 21 A.D.3d 430, 800 N.Y.S.2d 439;  People v. Coleman, 16 A.D.3d 254, 791 N.Y.S.2d 112, lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157 [2005] ).

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