| People v Fields |
| 2011 NY Slip Op 08164 [89 AD3d 861] |
| November 9, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DwayneFields, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, Lois Cullen Valerio, andRichard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Neary, J.),rendered October 29, 2008, convicting him of murder in the second degree, attempted murder in thesecond degree, assault in the first degree, and criminal possession of a weapon in the second 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 the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that a detective's testimony implicitly bolstered the identificationtestimony of two witnesses is unpreserved for appellate review, since he failed to object to the allegedlyimproper testimony (see CPL 470.05 [2]; People v West, 56 NY2d 662, 663 [1982];People v Capehart, 60 AD3d 689,690 [2009]). In any event, the defendant's contention is without merit (see People v McIlwain,205 AD2d 710 [1994]; People v Middleton, 128 AD2d 554 [1987]).
The County Court properly admitted statements made by a complainant to a police [*2]officer at a hospital under the excited utterance exception to the hearsayrule. As the statements were made 10 minutes after the complainant was beaten with a baseball bat andshot in the back, while he was in great pain and screaming that he thought he was going to die, and justbefore he slipped into unconsciousness, they were clearly " 'the product of the declarant's exposure to astartling or upsetting event that [was] sufficiently powerful to render the observer's normal reflectiveprocesses inoperative' preventing the opportunity for deliberation and fabrication" (People vCarroll, 95 NY2d 375, 385 [2000], quoting People v Vasquez, 88 NY2d 561, 574[1996]; see People v Fratello, 92 NY2d 565, 570-571 [1998], cert denied 526 US1068 [1999]; People v Cotto, 92 NY2d 68, 79 [1998]; People v Holden, 82 AD3d 1007, 1008-1009 [2011]; People v Whitley, 59 AD3d 746,746-747 [2009]).
Contrary to the defendant's contention, the trial court providently exercised its discretion in denyinghis request to admit into evidence a witness's statement to the police, which identified another person asthe perpetrator, under the past recollection recorded exception to the hearsay rule, in light of thewitness's inability to "presently testify that the record correctly represented his knowledge andrecollection when made" (People v Taylor, 80 NY2d 1, 8 [1992]; see People v Pacheco, 38 AD3d 686,689 [2007]; People v Fields, 151 AD2d 598, 599-600 [1989]). Moreover, the exclusion ofthe statement did not violate the defendant's constitutional right to present a defense. The statement didnot demonstrate sufficient indicia of reliability and, although exculpatory, was not critical to the defense,since the alleged alternative perpetrator testified for the defense and was never alleged to be theperpetrator at trial (see People v Ortiz,81 AD3d 513, 514 [2011]; People vBurns, 18 AD3d 397, 398 [2005], affd 6 NY3d 793 [2006]; cf. Chambers vMississippi, 410 US 284, 302 [1973]; People v Robinson, 89 NY2d 648, 654 [1997];People v Oxley, 64 AD3d 1078,1083-1084 [2009]).
The defendant's remaining contentions are unpreserved for appellate review and, in any event,without merit. Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.