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

The PEOPLE, etc., respondent, v. Damon BLACKMAN, appellant.

Decided: December 27, 2004

SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, ROBERT A. SPOLZINO, and ROBERT A. LIFSON, JJ. Stuart D. Rubin, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered September 29, 2003, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his contention that the Supreme Court erroneously admitted into evidence an audiotape of the complainant's telephone call to the 911 emergency number because it constituted hearsay and violated his constitutional right to confront a witness (see CPL 470.05[2];  People v. Qualls, 55 N.Y.2d 733, 734, 447 N.Y.S.2d 149, 431 N.E.2d 634;  People v. Young, 308 A.D.2d 555, 556, 764 N.Y.S.2d 468;   People v. Moreno, 303 A.D.2d 424, 755 N.Y.S.2d 868;  People v. Alvarado, 294 A.D.2d 155, 156, 744 N.Y.S.2d 662;  People v. Perone, 119 A.D.2d 838, 501 N.Y.S.2d 464).   In any event, his contention is without merit.   The complainant's statements on the audiotape constituted an excited utterance because he remained under the stress of excitement caused by the robbery when he made the call (see People v. Simpson, 238 A.D.2d 611, 612, 656 N.Y.S.2d 765;  People v. Ruiz, 235 A.D.2d 280, 653 N.Y.S.2d 298;  People v. Davis, 203 A.D.2d 300, 610 N.Y.S.2d 63;  People v. Gonzalez, 193 A.D.2d 360, 361, 597 N.Y.S.2d 44).   Moreover, the defendant waived his contention that portions of the audiotape should have been redacted to exclude statements made by the complainant that were not based upon his personal knowledge and to exclude the voice of a nonwitness heard on the tape (see People v. Spragis, 5 A.D.3d 814, 815, 772 N.Y.S.2d 628;  People v. Young, 296 A.D.2d 588, 590, 746 N.Y.S.2d 195;  People v. Dominguez, 257 A.D.2d 511, 512, 685 N.Y.S.2d 14;   People v. Graham, 228 A.D.2d 299, 644 N.Y.S.2d 203;  People v. Samuels, 143 A.D.2d 856, 857, 533 N.Y.S.2d 491).   The defendant neither objected to the admission of the full tape, nor requested redaction, and he affirmatively used the complainant's statements on the tape during his cross-examination of the complainant and during summation to argue that the complainant's testimony was not credible (see People v. Spragis, supra at 815, 772 N.Y.S.2d 628;  People v. Young, supra at 590, 746 N.Y.S.2d 195;  People v. Dominguez, supra at 512, 685 N.Y.S.2d 14;  People v. Samuels, supra at 857, 533 N.Y.S.2d 491).

 In addition, the defendant failed to preserve for appellate review his contention that testimony regarding his black eye, elicited by the prosecution on its direct case, was irrelevant and overwhelmingly prejudicial in its tendency to show that he had a propensity for violence (see CPL 470.05[2];  People v. Taylor, 302 A.D.2d 480, 481, 754 N.Y.S.2d 893).   In any event, the defendant's contention is without merit because the evidence regarding his black eye was relevant to the issue of identity and it did not necessarily show a propensity for violence (see People v. Gordon, 308 A.D.2d 461, 764 N.Y.S.2d 115;  People v. Reid, 259 A.D.2d 505, 686 N.Y.S.2d 766;  People v. Gardner, 292 A.D.2d 464, 738 N.Y.S.2d 879;  People v. Ramos, 209 A.D.2d 448, 618 N.Y.S.2d 454).

 The defendant also failed to preserve for appellate review his contention that the Supreme Court improperly allowed the prosecution to cross-examine him regarding a marijuana conviction and prior bad acts which occurred on May 26, 2002 (see CPL 470.05[2];  People v. Batista, 4 A.D.3d 222, 771 N.Y.S.2d 662;  People v. Villanueva, 289 A.D.2d 425, 734 N.Y.S.2d 906;  People v. Brito, 179 A.D.2d 666, 578 N.Y.S.2d 607;  People v. Kim, 170 A.D.2d 707, 567 N.Y.S.2d 119).   In any event, his contention is without merit, as his prior conviction and prior bad acts were probative on the issue of the defendant's credibility and his willingness to place his own interests before the interests of society (see People v. Bennett, 79 N.Y.2d 464, 468, 583 N.Y.S.2d 825, 593 N.E.2d 279;  People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413;  People v. Dwyer, 243 A.D.2d 645, 665 N.Y.S.2d 518;  People v. Brown, 262 A.D.2d 328, 689 N.Y.S.2d 652).   The probative value of this evidence outweighed any potential for unfair prejudice, especially in view of the limitations placed upon the prosecutor's questioning by the Supreme Court (see People v. Sandoval, supra at 375-376, 357 N.Y.S.2d 849, 314 N.E.2d 413;  People v. Rivera, 259 A.D.2d 570, 684 N.Y.S.2d 896).   Moreover, the prosecutor's questions regarding the defendant's prior bad acts did not violate the defendant's privilege against self-incrimination since those acts were not the subject of a pending, unrelated criminal charge (cf. People v. Betts, 70 N.Y.2d 289, 291, 520 N.Y.S.2d 370, 514 N.E.2d 865).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.

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