Opinion
Argued September 17, 2001.
October 1, 2001.
Appeal by the defendant from a judgment of the County Court, Putnam County (Miller, J.), rendered January 10, 2001, convicting him of assault in the third degree, upon a jury verdict, and sentencing him to determinate term of one year imprisonment plus restitution in the amount of $485.
William G. Sayegh, P.C., Carmel, N.Y. (Martin N. Ashley of counsel), for appellant.
Kevin L. Wright, District Attorney, Carmel, N.Y. (Mary Jane MacCrae of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, HOWARD MILLER, SANDRA L. TOWNES, JJ.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the term of imprisonment to a determinate term of six months; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Putnam County, for further proceedings pursuant to CPL 460.50(5).
For approximately one year, the defendant and the complainant had an "on and off" romantic relationship. According to the complainant, on August 1, 1999, the defendant physically assaulted her in his apartment after she indicated to him that she would reconcile with her former husband, and move in with him. Although on a tape-recorded call to the 911 emergency telephone number, admitted into evidence, the defendant admitted to beating the complainant, at trial the defendant denied ever doing so. According to his trial testimony, the complainant was upset after he refused to permit her to move in with him. He claimed that she was highly intoxicated and sustained her injuries when she allegedly fell on her own, after he removed the complainant from his apartment. During the course of the trial, the defendant further testified that on the day after the incident, the complainant left a number of threatening messages on his answering machine, including one message in which she purportedly stated that she would drop the charges against him, and "tell the truth" if he allowed her to move in with him. This tape was given to the police by the defendant who wanted the complainant arrested for aggravated harassment. However, prior to any requests for the return of the tape by the defendant, the police destroyed the tape.
The defendant contends that the trial court erred in denying his motion for dismissal of the indictment as a sanction for the destruction of that tape. The record supports the trial court's finding that the destruction of the tape by the police was done only after the defendant stated that he would not proceed with charges against the complainant. Therefore, the destruction was not done in bad faith. Moreover, the exculpatory value of the tape recording, in light of the other evidence at trial, was speculative at best. Indeed, the defendant was given the opportunity to cross-examine the complainant about the alleged telephone message, testify about it in detail during his direct examination, and comment on the destruction of the tape by the police during summation. Accordingly, the trial court providently exercised its discretion by refusing to dismiss the indictment as a sanction against the People (see, People v. Haupt, 71 N.Y.2d 929; People v. Bay, 67 N.Y.2d 787; People v. Kelly, 62 N.Y.2d 516; People v. Berry, 260 A.D.2d 497; People v. Lulenski, 193 A.D.2d 817, 818; People v. Daly, 186 A.D.2d 217; People v. McIntosh, 184 A.D.2d 662; People v. Scattareggia, 152 A.D.2d 679, 680).
Also without merit is the defendant's claim that the prosecutor's removal of the 911 tape admitted into evidence to review it in preparation for summation amounted to misconduct warranting the reversal of his conviction. The record supports the finding by the trial court that to the extent there was any impropriety in the prosecutor's conduct, there is no showing of prejudice to the defendant or deprivation of his right to a fair trial (see, CPL 280.10; People v. Magee, 254 A.D.2d 825). It was established at trial that there was no question as to the identity of the persons on the 911 tape, or to the accuracy of the conversation that was recorded. Moreover, the defendant conceded that the tape was not tampered with while in the possession of the prosecutor (see, People v. Portanova, 56 A.D.2d 265, 271).
The sentence imposed was excessive to the extent indicated herein.
SANTUCCI, J.P., FLORIO, H. MILLER and TOWNES, JJ., concur.