Opinion
KA 00-02516.
November 21, 2003.
Appeal from a judgment of Supreme Court, Monroe County (Wisner, J.), entered December 17, 1996, convicting defendant after a jury trial of, inter alia, murder in the second degree (two counts).
Peter J. Pullano, Rochester, for Defendant-Appellant.
Howard R. Relin, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Green, Scudder, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
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 murder in the second degree (two counts) (Penal Law § 125.25, [3]), attempted murder in the first degree (§§ 110.00, 125.27 [1][a][vii]), and robbery in the first degree (§ 160.15). Defendant was sentenced to concurrent and consecutive indeterminate terms of incarceration aggregating 37½ years to life.
Defendant has failed to preserve for our review his contention that reversal is required based on Supreme Court's failure to respond promptly to a jury note ( see People v. Johnson, 289 A.D.2d 1008, 1009, lv denied 97 N.Y.2d 756; People v. Schojan, 272 A.D.2d 932, 934, lv denied 95 N.Y.2d 871; see generally People v. Starling, 85 N.Y.2d 509, 516; People v. DeRosario, 81 N.Y.2d 801, 803). In any event, there is no merit to that contention, inasmuch as the court complied in all material respects with the procedures set forth in CPL 310.30 and in People v. O'Rama ( 78 N.Y.2d 270, 277-278; see Schojan, 272 A.D.2d at 934). Moreover, defendant was not prejudiced by any delay in the court's response to the jury note. The requested document had not been admitted in evidence and thus could not have been provided to the jury irrespective of the timing of the court's response.
The decedent's statement to a prosecution witness was properly admitted in evidence under the present sense impression exception to the hearsay rule ( see People v. Vasquez, 88 N.Y.2d 561, 574-575; People v. Buie, 86 N.Y.2d 501, 503; People v. Brown, 80 N.Y.2d 729, 732-733). There was sufficient corroboration, by means of independent proof, of both the contemporaneity and reliability of the out-of-court declaration ( see Vasquez, 88 N.Y.2d at 575; Brown, 80 N.Y.2d at 734, 737).
The court did not err in allowing the surviving shooting victim to identify defendant in court. That identification was not shown to have been tainted by any unnecessarily suggestive police-arranged identification procedure ( see People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833). In any event, the court properly determined that the surviving victim had an independent basis for his in-court identification of defendant as the shooter ( see People v. Spirles, 294 A.D.2d 810, 811, lv denied 98 N.Y.2d 713, 99 N.Y.2d 540; People v. Grimes, 289 A.D.2d 1072, lv denied 97 N.Y.2d 755; see generally People v. Adams, 53 N.Y.2d 241, 251). Moreover, the victim's viewing of the videotape depicting defendant, which was initially accomplished without the involvement of police, was not an identification procedure requiring notice pursuant to CPL 710.30 ( see generally People v. Gee, 99 N.Y.2d 158, 162; People v. Herner, 85 N.Y.2d 877, 879).
The verdict is not against the weight of the evidence on the issue of defendant's identity as the shooter ( see People v. Ruttlen, 289 A.D.2d 1061, 1062, lv denied 98 N.Y.2d 713; People v. Epps, 284 A.D.2d 996, 996-997; see generally People v. Bleakley, 69 N.Y.2d 490, 495). Defendant's motion challenging the make-up of the entire jury panel was properly denied without a hearing ( see People v. McFadden, 244 A.D.2d 887, 889; see also People v. Davidson, 251 A.D.2d 1036). Defendant's motion papers failed to set forth sufficient facts substantiating the contention that a substantial and identifiable segment of the community was not included in the jury pool as a result of intentional discrimination or a systematic exclusion of that group ( see People v. Williams, 256 A.D.2d 661, 663, lv denied 93 N.Y.2d 981; Davidson, 251 A.D.2d 1036; McFadden, 244 A.D.2d at 889, lv denied 97 N.Y.2d 757; see generally People v. Guzman, 60 N.Y.2d 403, 410-411, cert denied 466 U.S. 951). The sentence is not unduly harsh or severe.