Appellate Division of the Supreme Court of New York, Second DepartmentMay 26, 1987
130 A.D.2d 759 (N.Y. App. Div. 1987)

May 26, 1987

Appeal from the Supreme Court, Queens County (Agresta, J.).

Ordered that the judgment is modified, on the law, by providing that the terms of imprisonment imposed on the three convictions shall run concurrently with one another; as so modified, the judgment is affirmed.

Several claims of trial error are raised on this appeal, but the only issue that warrants discussion concerns the introduction into evidence of the testimony taken at a pretrial hearing of a witness who died prior to the trial. We note that at the trial, the defendant did not object to the use of that testimony on the ground that it was not admissible under CPL 670.10 (1); therefore, any challenge based upon the statute must be deemed to have been waived (see, People v. Prince, 106 A.D.2d 521, affd 66 N.Y.2d 935). Judged under common-law standards, we find that there was no denial of the defendant's right of confrontation, as a review of the record reveals that the defendant was afforded ample opportunity to cross-examine the witness with respect to the subject matter for which the testimony was used at the trial (see, People v. Arroyo, 54 N.Y.2d 567, 574-575, cert denied 456 U.S. 979; People v. Simmons, 36 N.Y.2d 126, 130; People v. Prince, supra).

The defendant's remaining claims of trial error, including those raised in his pro se brief, have been considered and found to be without merit. Some of the issues tendered by the defendant in his pro se brief were previously determined in the appeal from the order made on his motion to suppress his confession (see, People v. Claudio, 59 N.Y.2d 556), and cannot be reconsidered.

The People correctly concede that the imposition of consecutive sentences in this case was illegal (see, Penal Law § 70.25; People v. Walsh, 44 N.Y.2d 631; People v. Maldonado, 127 A.D.2d 855). We determine, however, that the imposition of the maximum permissible sentence was not excessive under the circumstances, including the fact that the defendant fired the shot that killed the victim. Mangano, J.P., Bracken, Lawrence and Kooper, JJ., concur.