| People v Valdes |
| 2009 NY Slip Op 07664 [66 AD3d 925] |
| October 20, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Victor Valdes, Also Known as Cuba,Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered November 8, 2006, convicting him of murder in the second degree and criminalpossession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's claim that exculpatory material exists that was not provided to the defendantpursuant to Brady v Maryland (373 US 83 [1963]) is based on matter dehors the recordand, thus, cannot be reviewed on direct appeal (see People v Reyes, 60 AD3d 873 [2009]; People v Purdie, 50 AD3d 1065[2008]; People v Williams, 43AD3d 729 [2007]).
The defendant's contention that certain remarks made by the prosecutor during hissummation were improper and deprived him of a fair trial are unpreserved for appellate review(see CPL 470.05 [2]; People vHoward, 61 AD3d 993 [2009]; People v Leon, 61 AD3d 776 [2009]). In any event, the commentsconstituted fair comment on the evidence and a fair response to the defense summation, or do notrequire reversal (see People v Halm, 81 NY2d 819 [1993]; People v Galloway,54 NY2d 396 [1981]; People vAlmonte, 23 AD3d 392, 394 [2005]; People v Molinaro, 62 AD3d 724 [2009]).
The defendant's contention, raised in his supplemental pro se brief, that the trial court erredin admitting into evidence a statement made by him during the course of an argument with thebrother of a witness who testified at trial, on the ground that it constituted hearsay, is withoutmerit. The testimony was admissible pursuant to the party admissions exception to the hearsayrule (see People v Johnson, 93 NY2d 254, 260 [1999]; People v Webb, 60 AD3d 1291[2009]; People v Nealy, 32 AD3d400, 402 [2006]; People v Swart, [*2]273 AD2d 503,505 [2000]; Prince, Richardson on Evidence, § 8-201, at 510 [Farrell 11th ed]). Thedefendant's claim, also raised in his supplemental pro se brief, that the admission of thistestimony violated his right to confrontation pursuant to the Sixth Amendment of the UnitedStates Constitution is unpreserved for appellate review (see CPL 470.05 [2]; People v Hall, 59 AD3d 564, 565[2009]; People v Crawford, 54AD3d 961, 962 [2008]; People vRush, 44 AD3d 799, 800 [2007]; People v Johnson, 40 AD3d 1011, 1012 [2007]) and, in any event,is without merit, as the statement made by the defendant was not testimonial in nature (seeCrawford v Washington, 541 US 36, 51 [2004]; People v Rawlins, 10 NY3d 136, 146-147 [2008], cert deniedsub nom. Meekins v New York, 557 US —, 129 S Ct 2856 [2009]; People v Medina, 53 AD3d 1046,1047 [2008]; People v Bryant, 27AD3d 1124, 1126 [2006]; People vPaul, 25 AD3d 165, 169-170 [2005]). Dillon, J.P., Florio, Belen and Roman, JJ.,concur.