Opinion
March 23, 1995
Appeal from the Supreme Court, New York County (Edward Sheridan, J.).
Defendant's claim that he was entitled to a sanction for the destruction of a 911 tape containing a purported statement by the complainant is inadequately preserved due to counsel's failure to request any specific sanction other than the inappropriate sanction of a mistrial (People v. Spivey, 81 N.Y.2d 356, 361), and his similar claim with respect to a taped communication made by a police officer is totally unpreserved. Were we to review these claims in the interest of justice, we would find that after defendant's timely request for the tapes, the People made good faith, diligent attempts to obtain the tapes prior to their erasure (People v. Figueroa, 156 A.D.2d 322, lv denied 76 N.Y.2d 734), and that the 911 call made by an unknown non-witness on behalf of the non-English-speaking complainant was, in any event, not Rosario material. (Matter of Christopher W., 202 A.D.2d 305.) While we agree with defendant that statements made through an interpreter are not exempt from the Rosario rule, the record does not support defendant's contention that the unknown non-witness was actually translating the complainant's words.
Defendant's challenges to the People's summation are almost entirely unpreserved. In any event, the People's summation was a fair response to the defense summation, and the challenged remarks could not have deprived defendant of a fair trial in view of the overwhelming evidence of guilt.
Concur — Ellerin, J.P., Rubin, Ross, Nardelli and Williams, JJ.