Opinion
April 29, 1985
Appeal from the Supreme Court, Kings County (Kooper, J.).
Order reversed insofar as appealed from, on the law, judgment vacated, jury verdict reinstated and case remitted to Criminal Term for reimposition of sentence in accordance with the verdict.
The evidence in the record before us was sufficient for the jury to conclude, beyond a reasonable doubt, that the defendant knew that he was shooting at police officers and, therefore, had committed the crime of attempted murder in the first degree. The police car, though unmarked, had a bubble light on it and the officers were in pursuit of defendant's vehicle after he sped away from the curb. It is evident that the jury could have reasonably believed that no one other than police officers would have pursued a speeding vehicle late at night. Although the officers' testimony was inconsistent on the issue of whether the shots were fired at the same time as or after the bubble light was placed on the car, the jury, as trier of the facts, could properly have resolved such inconsistencies in the People's favor ( see, People v. Woods, 99 A.D.2d 556). Accordingly, the jury verdict should be reinstated ( People v. Woods, supra; People v Johnson, 77 A.D.2d 666; People v. Dorta, 56 A.D.2d 607, appeal dismissed 44 N.Y.2d 930).
With respect to the defendant's appeal from the judgment of conviction, there are no errors warranting reversal. The trial court's Sandoval ruling constituted a proper exercise of discretion ( People v. Rahman, 62 A.D.2d 968, affd 46 N.Y.2d 882; People v. Cherry, 106 A.D.2d 458) and it was proper to refuse to admit evidence of a false exculpatory statement. While a false exculpatory statement is usable against defendant as an implied admission of guilt ( People v. Torres, 32 A.D.2d 791), there is no authority for the proposition that such a statement may be used to exculpate a defendant where the declarant is not on trial and is unavailable for cross-examination unless it meets the stringent criteria for a declaration against penal interest ( see, People v. Maerling, 46 N.Y.2d 289; People v. Settles, 46 N.Y.2d 154; People v. Nicholson, 108 A.D.2d 929), which is clearly not the case here. Indeed, the statement was not truly exculpatory of defendant since it merely indicated the driver's desire to disassociate himself from the guns found in the car.
We note, finally, that the People's appeal was timely taken ( see, People v. Jayson, 31 A.D.2d 551, 552). Titone, J.P., Lazer, O'Connor and Niehoff, JJ., concur.