People v. Landy , 635 N.Y.S.2d 602 ( 1995 )

—Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered May 23, 1994, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a second felony offender, to a term of lxh to 15 years, unanimously affirmed.

The police had probable cause to arrest defendant when they found him in a building, to which they had been dispatched, struggling with the building’s superintendent, who told the police that he had seen defendant in one of the apartments with a window broken (see, People v Hetrick, 80 NY2d 344, 348-349).

Defendant did not request any sanction for the People’s failure to preserve tapes of "911” calls, and therefore, the claim is unpreserved for review (People v Bradley, 193 AD2d 385, 386, lv denied 81 NY2d 1070). Furthermore, a sanction would have been unwarranted, as the People did not fail to exercise due diligence to preserve the tapes. Defendant did not request the tapes until after they had been destroyed pursuant to police routine (People v Ortiz, 188 AD2d 292, lv denied 81 NY2d 890). Moreover, defendant received a complete printout. Concur— Wallach, J. P., Kupferman, Ross, Williams and Tom, JJ.