Opinion
(1737) KA 99-05304
December 21, 2001.
(Appeal from Judgment of Erie County Court, Drury, J. — Murder, 2nd Degree.)
PRESENT: PINE, J.P., WISNER, SCUDDER, KEHOE AND GORSKI, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of murder in the second degree (two counts) (Penal Law § 125.25, [3]), robbery in the first degree (Penal Law § 160.15), unauthorized use of a vehicle in the first degree (Penal Law § 165.08), and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). Defendant was sentenced to concurrent indeterminate terms of incarceration, the longest of which are 25 years to life. County Court properly admitted the victim's statement under the present sense impression exception to the hearsay rule. The People met their burden of adducing evidence sufficiently corroborative of the "substance and content" of the statement ( People v. Vasquez, 88 N.Y.2d 561, 576; see, People v. Brown, 80 N.Y.2d 729, 734-737). The conviction is supported by legally sufficient evidence of defendant's identity as the robber/killer, and the verdict is not against the weight of the evidence on the issues of identity or whether the killing was committed during or in furtherance of the robbery ( see, People v. Bleakley, 69 N.Y.2d 490, 495; People v. Epps, 284 A.D.2d 996; People v. Aguayo, 141 A.D.2d 827, 828, lv denied 72 N.Y.2d 1043). Defendant was not deprived of a fair trial by prejudicial remarks of a prosecution witness, by the charge on "recent exclusive possession", by the supplemental instructions given in response to the jury's note, or by prosecutorial misconduct during summation.
Defendant's challenge to the alleged repugnancy of the verdict is unpreserved for our review ( see, People v. Alfaro, 66 N.Y.2d 985, 987; People v. Satloff, 56 N.Y.2d 745, 746, rearg denied 57 N.Y.2d 674), and in any event is without merit ( see, People v. Tucker, 55 N.Y.2d 1, 6-8, rearg denied 55 N.Y.2d 1039; People v. Hightower, 286 A.D.2d 913; People v. Kellogg, 210 A.D.2d 912, 912-913, lv denied 86 N.Y.2d 737). Based on the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 147). Finally, the sentence is not unduly harsh or severe.