Summary
In People v Bernard (214 A.D.2d 578, 578-579 [2d Dept 1995]), the Court said: "The trial court also did not err in admitting into evidence testimony regarding the deceased victim's statement on the night of the shooting of his intention to meet someone named `Mike'.
Summary of this case from People v. AsmarOpinion
April 3, 1995
Appeal from the Supreme Court, Suffolk County (Mallon, J.).
Ordered that the judgment is affirmed.
There is no merit to the defendant's claim that the testimony of his accomplice was insufficiently corroborated. The nonaccomplice evidence presented by the People, if credited by the jury, was legally sufficient to meet the standard of CPL 60.22 (1), which provides that a defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense. Accordingly, the trial court did not err in submitting the murder count to the jury.
Further, the trial court did not improvidently exercise its discretion in admitting into evidence a videotape of the crime scene and the victim's body. The videotape was not unduly prejudicial and was properly admitted to illustrate and corroborate the testimony of the prosecution witnesses, including the medical examiner's testimony regarding the injuries suffered by the victim (see, People v Stevens, 76 N.Y.2d 833, 835; People v Ellwood, 205 A.D.2d 553). Significantly, the victim's body appeared on the videotape for only a short period of time.
The trial court also did not err in admitting into evidence testimony regarding the deceased victim's statement on the night of the shooting of his intention to meet someone named "Mike". Under the state of mind exception to the hearsay rule, a declarant's statement that he intends to meet another is admissible "where the statement is made under circumstances that make it probable that the expressed intent [is] a serious one, and that it [is] realistically likely that such a meeting would in fact take place" (People v Malizia, 92 A.D.2d 154, 160, affd 62 N.Y.2d 755, cert denied 469 U.S. 932; see also, People v Bongarzone, 116 A.D.2d 164, 169-170, affd 69 N.Y.2d 892; United States v Pheaster, 544 F.2d 353, cert denied sub nom. Inciso v United States, 429 U.S. 1099). In the present case, the deceased victim's statement was made under circumstances which made it probable that such a meeting would in fact take place.
We also reject the defendant's contention that reversible error took place by reason of prosecutorial misconduct. The defendant failed to preserve the majority of his claims for appellate review, and the remainder of his claims are either without merit or do not warrant reversal in light of the overwhelming evidence of the defendant's guilt (see, People v Crimmins, 36 N.Y.2d 230, 241-242).
The defendant's remaining contentions are either unpreserved for appellate review, without merit, or do not warrant reversal. Bracken, J.P., Thompson, Hart and Goldstein, JJ., concur.