Opinion
2013-03-6
The PEOPLE, etc., respondent, v. JINGZHI LI, appellant.
Leonard J. Levenson, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Michael Brenner of counsel), for respondent.
Leonard J. Levenson, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Michael Brenner of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered December 22, 2009, convicting him of attempted murder in the second degree (three counts) and assault in the first degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court did not improvidently exercise its discretion in refusing to admit into evidence a statement made by the defendant's arraignment counsel under the present sense impression exception to the hearsay rule. The record demonstrates that arraignment counsel made the statement at issue as part of her argument for lower bail at the arraignment hearing after having time to reflect, that she was describing events that occurred in the past, rather than describing events she observed as they were occurring. Consequently, the statement was not admissible into evidence as a present sense impression ( see People v. Vasquez, 88 N.Y.2d 561, 574–575, 647 N.Y.S.2d 697, 670 N.E.2d 1328;People v. Parchment, 92 A.D.3d 699, 699, 938 N.Y.S.2d 174;People v. Matyszewski, 47 A.D.3d 646, 646–647, 848 N.Y.S.2d 542).
Contrary to the defendant's contentions, reversal is not warranted due to the late disclosure of certain evidence, as violations of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881,cert. denied368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The defendant failed to demonstrate that he suffered any prejudice from the delay in disclosure ( seeCPL 240.75; People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134;People v. Uka, 92 A.D.3d 907, 908, 938 N.Y.S.2d 814;People v. Khatib, 81 A.D.3d 852, 852, 916 N.Y.S.2d 234;People v. Poladian, 2 A.D.3d 755, 755, 768 N.Y.S.2d 646). The material was available for use at trial upon its disclosure and was, in fact, used by the defendant ( see People v. Fuentes, 48 A.D.3d 479, 479, 851 N.Y.S.2d 628,affd.12 N.Y.3d 259, 879 N.Y.S.2d 373, 907 N.E.2d 286;People v. Wood, 40 A.D.3d 663, 664, 835 N.Y.S.2d 414;People v. Myron, 28 A.D.3d 681, 683–684, 814 N.Y.S.2d 198,cert. denied549 U.S. 1326, 127 S.Ct. 1919, 167 L.Ed.2d 572).
The imposition of consecutive sentences was not illegal ( seePenal Law § 70.25[2] ). Each of the attempted murders committed by the defendant was a separate and distinct act committed against a separate victim ( see People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29;People v. Holmes, 92 A.D.3d 957, 957, 938 N.Y.S.2d 902;People v. Pujji, 74 A.D.3d 1100, 1101, 903 N.Y.S.2d 486).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).