Opinion
9822 Ind. 660/11
07-09-2019
The PEOPLE of the State of New York, Respondent, v. ANONYMOUS, Defendant–Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Katherine M.A. Pecore of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Christina A. Swarns, Office of the Appellate Defender, New York (Katherine M.A. Pecore of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Renwick, J.P., Gische, Kapnick, Singh, JJ.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered August 6, 2014, convicting defendant, after a jury trial, of murder in the second degree and gang assault in the first degree, and sentencing him to an aggregate term of 25 years to life, unanimously affirmed.
The court properly denied defendant's motion to suppress photo and lineup identifications. We have examined the photo array and a photograph of the lineup, and we conclude that the record supports the court's finding that neither was unduly suggestive (see People v. Chipp , 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ; see also People v. Perkins , 28 N.Y.3d 432, 45 N.Y.S.3d 860, 68 N.E.3d 679 [2016] ). Any differences in the composition and backgrounds of the photos was insignificant. As for the lineup, the color photo thereof established "that defendant and the fillers were sufficiently similar in skin tone and other features" ( People v. Bazemore , 147 A.D.3d 698, 698, 48 N.Y.S.3d 135 [1st Dept. 2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ). Defendant's argument that the witness might have recognized one lineup filler, a police detective, is unsupported by any evidence that the witness had ever seen him before.
Defendant did not preserve his claim that the court should have allowed him to question the detective about another person's out-of-court statement, and we decline to review it in the interest of justice. As an alternative holding, we find that defendant did not establish any basis for introducing a hearsay statement by a person who was available to testify and was a prospective defense witness.
The court properly admitted a recording of a 911 call under the present sense impression exception to the hearsay rule, because the declarant was describing substantially contemporaneous events (see People v. Vasquez , 88 N.Y.2d 561, 575, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ). There was no violation of the Confrontation Clause, because the caller's statements addressing an ongoing emergency were nontestimonial (see People v. Villalona , 145 A.D.3d 625, 626, 46 N.Y.S.3d 7 [1st Dept. 2016], lv denied 29 N.Y.3d 953, 54 N.Y.S.3d 384, 76 N.E.3d 1087 [2017] ).
We also find that any error in any of the above-discussed ruling, including those relating to identification evidence, was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins , 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
We perceive no basis for reducing the sentence. We have considered defendant's remaining arguments and find them unavailing.