Opinion
December 27, 2000.
Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Assault, 2nd Degree.
PRESENT: PIGOTT, JR., P. J., HURLBUTT, KEHOE AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Supreme Court properly denied defendant's request for a missing witness charge. Testimony from those additional witnesses would have been cumulative ( see, People v. Gonzalez, 68 N.Y.2d 424, 428; People v Early, 266 A.D.2d 881, 881-882, lv denied 94 N.Y.2d 918). We reject defendant's further contention that the court erred in excluding hearsay testimony. The testimony concerned a "recalled or recast description of events that were observed in the recent past";, and thus did not fall within the present sense impression exception to the hearsay rule ( People v. Vasquez, 88 N.Y.2d 561, 575). The sentence is neither unduly harsh nor severe.