Opinion
December 3, 1992
Appeal from the Supreme Court, Bronx County (Gerald Sheindlin, J.).
The trial court did not err in refusing to impose any sanction for the People's failure to preserve the "911" tapes. The People did not fail to exercise due diligence, since no specific request for the tapes was made until after they had been routinely destroyed (People v Hyde, 172 A.D.2d 305, 306, lv denied 78 N.Y.2d 1077), and defendant was not prejudiced by the destruction of the tapes, since they did not relate to him or to the crime charged (see, People v Martinez, 71 N.Y.2d 937, 940).
The bolstering of the eyewitness's identification testimony does not require reversal under the circumstances here presented, since, to the extent the issue is preserved, the court promptly sustained defense counsel's objection to the testimony and directed the jury to disregard it. Moreover, defendant does not contest that similar testimony was properly admissible on rebuttal, after he questioned whether and how the eyewitness made his identification (People v Carll, 184 A.D.2d 236, lv denied 80 N.Y.2d 902), and, in any event, any error was harmless in view of the overwhelming evidence of guilt (see, People v Johnson, 57 N.Y.2d 969).
Defendant was not deprived of a fair trial by remarks made by the prosecutor in summation, the comments being for the most part a fair response to the defense summation and an attempt to put the defense arguments, and the evidence, into proper context (People v Emphram, 179 A.D.2d 402, lv denied 79 N.Y.2d 947).
Finally, although defendant may well be a second felony offender, the People failed to satisfy the requirements of CPL 400.21 (2) and Penal Law § 70.06 (1) (b) (iv) and (v) by relying only on the NYSIID sheet for proof of the period of defendant's prior incarceration during which the statute was tolled (see, People v Tatta, 177 A.D.2d 674, lv denied 79 N.Y.2d 923; People v Bush, 74 A.D.2d 927). Accordingly, the case should be remanded for resentencing on the burglary count, at which time the People may avail themselves of the opportunity to comply with the statutory requirements.
Concur — Murphy, P.J., Wallach, Ross, Asch and Rubin, JJ.