Opinion
2394
December 3, 2002.
Judgment, Supreme Court, New York County (John Bradley, J.), rendered November 8, 2000, convicting defendant, after a jury trial, of robbery in the third degree and grand larceny in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years and 1½ to 3 years, respectively, unanimously affirmed.
Susan Gliner, for Respondent.
Lisa Lewis, for Defendant-appellant.
MAZZARELLI, J.P., ANDRIAS, SAXE, SULLIVAN, ROSENBERGER, JJ.
The court properly admitted a tape recording of a 911 call by the victim's sister as both a present sense impression and an excited utterance. Contrary to defendant's argument, the record establishes that the victim's sister personally observed the events she reported. Although she did not see defendant stealing the victim's wallet, which occurred inside a store, she testified that she saw part of the wallet sticking out from defendant's pants pocket and observed the victim following defendant out of the store begging for defendant to return it to her. In addition to being based upon first-hand observation of the events, the 911 call satisfied all the remaining requirements for admission under the present sense impression and excited utterance exceptions to the hearsay rule, and there was no violation of defendant's right of confrontation (see People v. Buie, 86 N.Y.2d 501; People v. Caviness, 38 N.Y.2d 227, 230-231; see also United States v. Jones, 299 F.3d 103, 113-114).
The court properly declined to charge the lesser included offense of petit larceny since there was no reasonable view of the evidence to support that charge (People v. Scarborough, 49 N.Y.2d 364).
Given the direct contradiction between defendant's testimony and that of the People's witnesses, the prosecutor's cross-examination of defendant concerning the nature of that contradiction was permissible (People v. Overlee, 236 A.D.2d 133, 139, lv denied 91 N.Y.2d 976).
There was a sufficient foundation for the prosecutor's cross-examination of defendant and summation comments concerning the absence of a potential defense witness, and there was no shifting of the burden of proof (see People v. Tankleff, 84 N.Y.2d 992, 994-995).
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.