Opinion
5267
February 3, 2005.
Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered June 26, 2002, convicting defendant, after a jury trial, of two counts of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 18 years to life, unanimously affirmed.
Before: Mazzarelli, J.P., Ellerin, Nardelli, Gonzalez and Catterson, JJ., concur.
A police officer's identification of defendant as the person he had been pursuing only moments before constituted a confirmatory identification that was exempt from the notice and hearing requirements of CPL article 710 ( People v. James, 220 AD2d 370, lv denied 88 NY2d 937; People v. Dueno, 203 AD2d 476; compare People v. Newball, 76 NY2d 587 [identification weeks after officer's initial viewing not confirmatory]).
The court properly precluded defendant from introducing a hearsay declaration by an unidentified witness. The declaration was not admissible as a present sense impression because the necessary verification and corroboration were lacking ( see People v. Vasquez, 88 NY2d 561, 574-576). Since the declaration lacked sufficient indicia of reliability ( see People v. Maisonette, 8 AD3d 158, lv denied 3 NY3d 677), the court properly rejected defendant's alternate argument that the declaration was admissible as a matter of due process ( see Chambers v. Mississippi, 410 US 284). Furthermore, even if deemed reliable, this evidence had only minimal exculpatory value. To the extent that defendant is raising a claim under Brady v. Maryland ( 373 US 83), such claim is unpreserved and unavailing.
While some of the prosecutor's summation comments were inappropriate, we conclude that the summation did not deprive defendant of a fair trial ( see People v. Overlee, 236 AD2d 133, lv denied 91 NY2d 976; People v. D'Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884).
Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved and without merit ( see People v. Rosen, 96 NY2d 329, cert denied 534 US 899). Defendant's mandatory sentence was triggered solely by his prior convictions ( see Almendarez-Torres v. United States, 523 US 224).