Opinion
June 5, 1997
Appeal from the Supreme Court, New York County (Marcy Kahn, J.).
The court properly admitted into evidence the unsworn but highly reliable out-of-court statements of a prosecution witness ( see, 169 Misc.2d 194), since misconduct by defendant in intimidating the witness was established by clear and convincing evidence ( People v. Geraci, 85 N.Y.2d 359), including evidence that the witness was threatened by unknown persons almost immediately after his identity was disclosed to the defense. The court's ruling barring cross-examination of the witness was appropriate under the circumstances presented since the witness's testimony was at complete variance with his prior statement to the People ( see, People v. Geraci, supra, at 367). In any event, we find the issue unpreserved.
The statements made by the victim in the ambulance within 30 minutes after he was shot were properly admitted into evidence under the excited utterance exception to the hearsay rule ( People v. Brown, 70 N.Y.2d 513). Although the excited utterances were not received as dying declarations, the People properly commented in summation on the victim's awareness of the life-threatening gravity of his wounds.
Defendant failed to preserve his challenges to the conduct of the court ( People v. Charleston, 56 N.Y.2d 886), and we decline to review them in the interest of justice. Were we to review them, we would find them to be without merit. The unusual circumstances presented, which resulted from defendant's proven misconduct, warranted a departure from normal procedures and the intervention of the trial court, none of which deprived defendant of a fair trial ( see, People v. Yut Wai Tom, 53 N.Y.2d 44), particularly since the jury was absent during virtually, all of the challenged conduct by the court ( People v. White, 213 A.D.2d 347, lv denied 85 N.Y.2d 981; People v. Gilbert, 103 A.D.2d 967, 968).
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Wallach, J.P., Rubin, Williams and Andrias, JJ. [See, 169 Misc.2d 194.]