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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARCIN MATYSZEWSKI, Appellant.

Ordered that the judgment is affirmed.

The Supreme Court did not improvidently exercise its discretion in refusing to admit into evidence a recording of the defendant's telephone call to 911 as an exception to the hearsay rule. The record indicates that the defendant made his exculpatory statements to the 911 operator after he had the time to reflect and possibly fabricate a story ( see People v Sostre, 51 NY2d 958, 960; People v Dalton, 217 AD2d 587, 588, affd sub nom. People v Vasquez, 88 NY2d 561; People v Wilson, 123 AD2d 457, 457-458). Accordingly, the recording was not admissible into evidence either as an excited utterance or a present sense impression ( see People v Vasquez, 88 NY2d 561, 574-575; People v Dalton, 217 AD2d at 588).

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PEOPLE v. MATYSZEWSKI
(Jan 8, 2008)