Opinion
December 21, 1995
Appeal from the Supreme Court, New York County (Antonio Brandveen, J.).
The police had probable cause to arrest defendant when they found him in a building, to which they had been dispatched, struggling with the building's superintendent, who told the police that he had seen defendant in one of the apartments with a window broken ( see, People v Hetrick, 80 N.Y.2d 344, 348-349).
Defendant did not request any sanction for the People's failure to preserve tapes of "911" calls, and therefore, the claim is unpreserved for review ( People v Bradley, 193 A.D.2d 385, 386, lv denied 81 N.Y.2d 1070). Furthermore, a sanction would have been unwarranted, as the People did not fail to exercise due diligence to preserve the tapes. Defendant did not request the tapes until after they had been destroyed pursuant to police routine ( People v Ortiz, 188 A.D.2d 292, lv denied 81 N.Y.2d 890). Moreover, defendant received a complete printout.
Concur — Wallach, J.P., Kupferman, Ross, Williams and Tom, JJ.