| People v Johnson |
| 2009 NY Slip Op 07275 [66 AD3d 703] |
| October 6, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tyrone Johnson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and JohnnetteTraill of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.),rendered September 10, 2003, convicting him of murder in the second degree, manslaughter inthe second degree, attempted robbery in the first degree, attempted robbery in the second degree,criminal possession of a weapon in the second degree, and criminal possession of a weapon inthe third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the admission of certain testimony at trial regarding statementsmade by the deceased victim, shortly after he was shot, deprived him of his constitutional rightto confront the witnesses against him because the decedent's statements were "testimonial" underCrawford v Washington (541 US 36 [2004]) and its progeny. However, the defendantfailed to argue before the trial court that the challenged statements were testimonial in nature;thus, the contention is unpreserved for appellate review (see People v Cato, 22 AD3d 863 [2005]; see also People vGray, 86 NY2d 10, 21 [1995]).
In any event, the statements made by the decedent to his mother and to his mother's tenantshortly after the shooting, as well as the statements initially made by the decedent to the policeofficer who responded to the scene, were nontestimonial in nature (see People v Medina, 53 AD3d1046, 1047 [2008]; People v Gantt,48 AD3d 59, 70 [2007]; Peoplev Rivera, 8 AD3d 53 [2004]; see also Crawford v Washington, 541 US at 51).Moreover, to the extent that the admission of certain subsequent and largely redundantstatements made by the decedent to the responding officer may have violated the rule articulatedin Crawford (see Davis v Washington, 547 US 813, 822 [2006]; cf. People v Nieves-Andino, 9 NY3d12 [2007]; People v Bradley, 8NY3d 124 [2006]; but see Crawford v Washington, 541 US at 56), the evidence ofthe defendant's guilt, including, inter alia, the properly admitted testimony, without reference tothe alleged error, was overwhelming, and there is no reasonable possibility that the alleged errormight have contributed to the defendant's convictions. Accordingly, the error, if any, washarmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 237 [1975];see also People v Gantt, 48 AD3d59, 71 [2007]; People v Purdie,27 AD3d 668 [2006]; People vMcBee, 8 AD3d 500, [*2]501 [2004]). Mastro, J.P.,Santucci, Chambers and Lott, JJ., concur.