| People v Mobley |
| 2008 NY Slip Op 02663 [49 AD3d 1343] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Bruce Mobley,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered February 13, 2004. The judgment convicted defendant, upon a jury verdict, of assault inthe first degree, criminal possession of a weapon in the second degree and criminal possession ofa weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofassault in the first degree (Penal Law § 120.10 [1]), criminal possession of a weapon in thesecond degree (former § 265.03 [2]) and criminal possession of a weapon in the thirddegree (§ 265.02 [former (4)]).
Defendant failed to preserve for our review his contention that his oral statement should havebeen suppressed as the product of an illegal arrest inasmuch as he failed to request a probablecause hearing or to raise that contention at the Huntley hearing (see People v Barton, 13 AD3d721, 723 [2004], lv denied 5 NY3d 785 [2005]; People v Purcelle, 282AD2d 824, 824-825 [2001]). Because defendant made only a general objection to the testimonyof a police officer that there was "a point in time in [her] investigation when [she] came up withthe name of a suspect" and that the name of the suspect was that of defendant, he also failed topreserve for our review his contention that such testimony constituted inadmissible inferentialhearsay (see People v Piper, 21AD3d 816 [2005], lv denied 5 NY3d 884 [2005]; People v Pierre, 300 AD2d1070 [2002], lv denied 99 NY2d 631 [2003]). We decline to exercise our power toreview those contentions as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
We reject defendant's further contention that the victim's statement to a police officer whilein an ambulance en route to the hospital after the shooting constituted inadmissible hearsay. Thevictim was still suffering from the pain and shock of the shooting when he made the statement,and he testified that he did not remember talking to the police and that he believed that he wasgoing to die. We thus conclude that the statement was "not made under the impetus of studiedreflection" and falls within the excited utterance exception to the hearsay rule (People [*2]v Edwards, 47 NY2d 493, 497 [1979]; see People v Johnson, 1 NY3d302, 306 [2003]; People v Cotto, 92 NY2d 68, 78-79 [1998]).
Defendant further contends that Supreme Court erred in refusing to give a missing witnesscharge with respect to the two individuals who were with the victim at the time of the shooting.Defendant raised that contention for the first time after the close of evidence and the chargeconference, and defendant thus failed to act "as soon as practicable so that the court [could]appropriately exercise its discretion and the parties [could] tailor their trial strategy to avoid'substantial possibilities of surprise' " (People v Gonzalez, 68 NY2d 424, 428 [1986]). Inany event, defendant failed to meet his burden of establishing that the victim's companions wereknowledgeable about the shooting, inasmuch as they started running from the scene before theshooting occurred (see id. at 427-428). Furthermore, the colloquy between the court andthe parties establishes that the victim's companions were never identified and thus were neitheravailable to testify nor under the People's control (see id. at 428; see generally Peoplev Savinon, 100 NY2d 192, 197-201 [2003]).
Contrary to defendant's further contention, the verdict is not against the weight of theevidence with respect to the issue of identification (see generally People v Danielson, 9 NY3d 342, 349 [2007];People v Bleakley, 69 NY2d 490, 495 [1987]). "The jury's resolution of credibility andidentification issues 'is entitled to great weight' " (People v Kelley, 46 AD3d 1329, 1331 [2007]), and it cannot besaid that the jury failed to give the evidence the weight it should be accorded (see People v Drake, 17 AD3d1154 [2005], lv denied 5 NY3d 788 [2005]).
Finally, we reject the contention of defendant that he was deprived of his right to effectiveassistance of counsel based on the failure of defense counsel to prove that the victim had amotive to lie concerning the identification of the shooter, as "promised" in his opening statement.The record establishes that defense counsel attempted to establish on cross-examination that thevictim was biased against defendant because of an incident in which defendant complained to thepolice about noise emanating from the victim's apartment, resulting in the victim's arrest forpossessing marihuana. Defense counsel's " 'use of an unsuccessful strategy is insufficient toestablish ineffective assistance of counsel' " (People v Knightner, 11 AD3d 1002, 1005 [2004], lv denied4 NY3d 745 [2004]). Present—Scudder, P.J., Centra, Lunn, Fahey and Green, JJ.