Opinion
2003-09533.
August 8, 2005.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered October 9, 2003, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Christopher C. Land of counsel), for respondent.
Before: Prudenti, P.J., Goldstein, Crane and Mastro, JJ., concur.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the defendant was not deprived of a fair trial by the trial court's refusal to redact an audiotape of the 911 call containing a statement that the defendant allegedly made to the complainant during the course of the robbery and the complainant's testimony about a similar statement ( cf. generally People v. Resek, 3 NY3d 385, 388-389). The probative value of the statements attributed to the defendant, "I just got out" and "I was locked up," outweighed any prejudice to the defendant. These statements, made by the defendant during the commission of the charged crime, were relevant to the People's case because the defense argued that the defendant's conduct had not been threatening and that the complainant had simply overreacted ( see People v. Resek, supra at 390). Furthermore, the prosecutor did not draw the jury's attention to this evidence and made no effort to draw a negative inference from the defendant's statements ( cf. People v. Dunn, 26 AD2d 381, 382). Accordingly, the Supreme Court properly denied the defendant's motion to preclude these statements.