PEOPLE v. STEWART

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

The PEOPLE, etc., respondent, v. Kareem STEWART, appellant.

Decided: October 25, 1999

FRED T. SANTUCCI, J.P., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN and NANCY E. SMITH, JJ. David W. Windley, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Thomas M. Ross, and Brendan Fitzgerald Crowe of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered September 15, 1997, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the trial court's Sandoval ruling balanced the relevant factors and formulated an appropriate compromise, and was not an improvident exercise of discretion (see, People v. Walker, 83 N.Y.2d 455, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458, 451 N.E.2d 216;  People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413).

The defendant also claims that the court improperly excluded from evidence an audiotape recording of a telephone call to the 911 emergency number in which the caller named persons other then the defendant as the perpetrators of the crime.   However, after a hearing to determine the exact dialogue of the 911 call, the declarant admitted that she did not remember who told her that “ Super John and Travis” were the shooters, nor could she state whether the persons who gave her those names actually witnessed the shooting.   Under these circumstances, the court properly excluded the tape (see, People v. Matos, 107 A.D.2d 823, 484 N.Y.S.2d 844;  People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695, 342 N.E.2d 496).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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