Opinion
KA 01-02381.
December 31, 2003.
Appeal from a judgment of Monroe County Court (Bellini, J.), entered September 19, 2001, convicting defendant after a jury trial of murder in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (DREW R. DU BRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (WENDY EVANS LEHMANN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PINE, J.P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of murder in the second degree (Penal Law § 125.25) for the shooting death of the victim. We reject defendant's contention that County Court erred in admitting the out-of-court declaration of the victim identifying defendant as his assailant. The statement was made by the victim while he was "under the stress of the event" ( People v. Vigliotti, 270 A.D.2d 904, 904, lv denied 95 N.Y.2d 839, 970) and at a time when he was so severely wounded that his "impending death could be readily inferred" ( People v. Thanh Giapp, 273 A.D.2d 54, 55, lv denied 95 N.Y.2d 872) . Contrary to defendant's further contention, the court properly determined that an eyewitness who invoked his Fifth Amendment privilege against self-incrimination was unavailable to testify ( see People v. Snow, 298 A.D.2d 985, lv denied 99 N.Y.2d 564) . In addition, the court properly permitted the prosecutor to read the testimony of that eyewitness from the preliminary hearing into the record at trial, inasmuch as defendant had a fair opportunity to cross-examine him at the preliminary hearing ( see id.). Finally, defendant failed to preserve for our review his contention that the prosecutor engaged in misconduct during his cross-examination of defendant, and, in any event, we conclude that defendant was not thereby deprived of a fair trial ( see People v. Conway, 277 A.D.2d 1020, lv denied 96 N.Y.2d 782).