Opinion
April 22, 1999
Appeal from the Supreme Court, New York County (Paul Bookson, J.).
The court properly declined defendant's request for an adverse, inference charge based on the destruction of the 911 tape, since there was no lack of diligence by the People and defendant was not prejudiced ( see, People v. Daniels, 254 A.D.2d 54). Moreover, the only portion of the erased tape that would have had any significance in the context of the issues raised at trial was the dispatcher's announcement of the time, and since this was a statement of a person not called as a witness, it did not constitute Rosario material ( see, People v. Pabon, 213 A.D.2d 289, lv denied 86 N.Y.2d 739). We also conclude that defendant's cross-examination of a police witness opened the door to the People's elicitation on redirect of the arrest time contained in the Sprint report ( see, People v. Wortherly, 68 A.D.2d 158, 160-163).
Concur — Ellerin, P. J., Nardelli, Williams and Rubin, JJ.