Opinion
KA 04-02646.
April 28, 2006.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered January 12, 2004. The judgment convicted defendant, upon a jury verdict, of criminal mischief in the third degree.
TULLY, RINCKEY ASSOCIATES, PLLC, ALBANY (GREG T. RINCKEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (PETER S. BLODGETT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Pigott, Jr., P.J., Scudder, Kehoe, Pine and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him of criminal mischief in the third degree (Penal Law § 145.05). Contrary to defendant's contention, County Court properly admitted a bystander's statement in evidence under the present sense impression exception to the hearsay rule ( see generally People v. Buie, 86 NY2d 501, 505-509; People v. Dann, 17 AD3d 1152, lv denied 5 NY3d 761; People v. Ortiz, 1 AD3d 1017, 1018, lv denied 1 NY3d 632). "There was sufficient corroboration, by means of independent proof, of both the contemporaneity and reliability of the out-of-court declaration" ( Ortiz, 1 AD3d at 1018; see generally People v. Vasquez, 88 NY2d 561, 574-575; People v. Brown, 80 NY2d 729, 734-736). Also contrary to defendant's contention, the sentence is not unduly harsh or severe.