People v. Smith , 704 N.Y.S.2d 868 ( 2000 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Minardo, J.), rendered January 9, 1997, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified on the law and the facts by reducing the conviction of robbery in the second degree to robbery in the third degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.

We agree with the defendant that the audio tape recording of a telephone call to the 911 emergency number was improperly admitted into evidence as an exception to the hearsay rule (cf., People v Buie, 86 NY2d 501). However, any error was harmless in light of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230, 241-242; People v Berry, 182 AD2d 824).

Viewing the evidence adduced at trial in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally insufficient to establish the defendant’s guilt of robbery in the second degree (see, Penal Law § 160.10). The evidence established, however, that the defendant forcibly stole property from the complainant. Therefore, the defendant’s conviction of robbery in the second degree is modified by reducing the conviction to robbery in the third degree (see, Penal Law § 160.05; see also, CPL 470.15).

The defendant’s remaining contentions are without merit. O’Brien, J. P., Krausman, Florio and McGinity, JJ., concur.