People v. Green

Decision Date10 November 1997
Citation244 A.D.2d 423,665 N.Y.S.2d 567
Parties1997 N.Y. Slip Op. 9532 The PEOPLE, etc., Respondent, v. Capree GREEN, Appellant.
CourtNew York Supreme Court — Appellate Division

Charles Lavine, Forest Hills, for appellant.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Linda Cantoni, and Jennifer F. Friedman, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered October 16, 1995, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the court improperly participated in the trial proceedings is not preserved for appellate review (see, CPL 470.05[2]; People v. Wright, 221 A.D.2d 577, 633 N.Y.S.2d 833). In any event, the court properly intervened in an effort to clarify the issues and facilitate the expeditious and orderly progress of the proceedings (see, People v. Moulton, 43 N.Y.2d 944, 403 N.Y.S.2d 892, 374 N.E.2d 1243; People v. Dominguez, 210 A.D.2d 249, 620 N.Y.S.2d 257).

The court's refusal to sanction the prosecution for the destruction of a tape of a telephone call made after the robbery to 911, the police emergency phone number, was not an improvident exercise of discretion. There was no showing of bad faith on the part of the People or prejudice to the defendant, and a "Sprint" report of the telephone call was supplied (see, People v. Gibbs, 211 A.D.2d 641, 620 N.Y.S.2d 484; People v. Grice, 203 A.D.2d 587, 588, 611 N.Y.S.2d 25; People v. Diggs, 185 A.D.2d 990, 991, 587 N.Y.S.2d 406; People v. Deas, 174 A.D.2d 751, 752, 571 N.Y.S.2d 778).

The defendant's remaining contentions are without merit (see, People v. Melendez, 55 N.Y.2d 445, 449 N.Y.S.2d 946, 434 N.E.2d 1324; Matter of Leon RR, 48 N.Y.2d 117, 122-123, 421 N.Y.S.2d 863, 397 N.E.2d 374).

THOMPSON, J.P., and PIZZUTO, SANTUCCI and JOY, JJ., concur.

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