Opinion
May 31, 1996
Appeal from the Erie County Court, LaMendola, J.
Present — Pine, J.P., Wesley, Callahan, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: On March 4, 1993, defendant served the People with a demand to produce any tapes that the People intended to introduce at trial. On January 27, 1995, six days prior to trial, the People disclosed that they intended to introduce previously undisclosed 911 tapes. Defense counsel moved to preclude and, in the alternative, sought a continuance to conduct an investigation into the identity of the 911 callers. County Court denied preclusion, but ordered that the People could not refer to the 911 tapes until defense counsel had an opportunity to conduct an investigation. The court further offered to sign an order to allow defense counsel to hire an investigator.
The failure of the People to disclose the 911 tapes in a more timely manner was improper ( see, People v. Benitez, 221 A.D.2d 965). The court did not abuse its discretion, however, in denying preclusion. Preclusion of evidence is too harsh a sanction "where less severe measures can rectify the harm done" ( People v Kelly, 62 N.Y.2d 516, 521; see also, People v. Beam, 161 A.D.2d 1153). Preclusion is warranted only where the delay substantially prejudices defendant ( People v. Benitez, supra, at 966, citing People v. Watson, 213 A.D.2d 996, lv denied 86 N.Y.2d 804). In our view, imposing a less severe sanction than preclusion was within the sound discretion of the court ( see, People v. Poladian, 167 A.D.2d 912, 913, lv denied 77 N.Y.2d 881).
We decline to exercise our power to modify defendant's sentence as a matter of discretion in the interest of justice ( see, CPL 470.15 [b]).