People v. Kelly

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Fertig, J.), rendered April 26, 1988, convicting him of attempted burglary in the second degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court erred by refusing to admit in evidence a tape of a telephone conversation between the complainant and an emergency number 911 telephone operator which contained statements inconsistent with the complainant’s trial testimony (see, Hanlon v Ehrich, 178 NY 474, 479-480; People v Chaitin, 94 AD2d 705, 706, affd 61 NY2d 683). However, since the jury was made aware of the inconsistencies through cross-examination and a stipulation by the Assistant District Attorney as to the accuracy of the 911 tape, we find that the error was harmless in light of the strength of the inculpatory evidence and the lack of any significant probability that the admission of the tape would have resulted in acquittal (see, People v Crimmins, 36 NY2d 230; People v Chaitin, supra; cf., People v Harding, 44 AD2d 800, 801).

The defendant’s further claim that the sentence imposed on the attempted burglary in the second degree conviction was excessive is without merit (see, People v Suitte, 90 AD2d 80). Mangano, P. J., Thompson, Miller and Ritter, JJ., concur.