| People v Clarke |
| 2012 NY Slip Op 08544 [101 AD3d 897] |
| December 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Desroy Clarke, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Steven A. Bender, andRichard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered August 18, 2005, convicting him of rape in the first degree, criminal sexualact in the first degree, and unlawful imprisonment in the second degree, upon jury verdicts, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484[2008]). In any event, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of rape in the first degree, criminal sexual act in the first degree, and unlawfulimprisonment in the second degree beyond a reasonable doubt. Moreover, upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdicts of guilt were not against theweight of the evidence (see People vDanielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d 633 [2006]).
The Supreme Court providently exercised its discretion in declining to give an Allencharge (see Allen v United States, 164 US 492 [1896]) during the second trial inresponse to a note from the jury, received after a few hours of deliberations, stating that the jurydid not expect to make any progress (seePeople v Clemente, 84 AD3d 829, 831 [2011]; People v Hyland, 45 AD3d 781 [2007]).
The defendant contends that the Supreme Court committed reversible error by admitting intoevidence a tape recording of the complainant's 911 call on the ground that such evidenceconstituted inadmissible hearsay which improperly bolstered witness testimony as priorconsistent statements. The tape recording of the complainant's 911 call was properly admitted.An out-of-court statement made by a witness which is consistent with that witness's trialtestimony is generally inadmissible as hearsay, but it may be admitted to rebut a claim of recentfabrication—an exception to the hearsay rule (see People v Buie, 86 NY2d 501,510-511 [1995]; People v Mack, 89AD3d 864, 866 [2011]; see also People v Baker, 23 NY2d 307, 323 [1968];People v Concepcion, 175 AD2d 324, 326 [1991]). [*2]However, if the out-of-court statement qualifies under a separateexception to the rule against hearsay, it may be admitted notwithstanding the fact that "it mightalso be a prior consistent statement" (People v Buie, 86 NY2d at 511; People vMack, 89 AD3d at 866 [internal quotation marks omitted]). Here, the tape recording of thecomplainant's 911 call was properly admitted under the excited utterance exception to thehearsay rule (see People v Buie, 86 NY2d at 511; People v Mack, 89 AD3d at866; People v Coward, 292 AD2d 630 [2002]; People v Carr, 277 AD2d 246,247 [2000]).
The record, viewed in totality, demonstrates that the defendant was afforded the effectiveassistance of counsel (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Rivera, J.P., Dillon, Leventhal and Chambers, JJ., concur.