| People v Hibbert |
| 2015 NY Slip Op 09300 [134 AD3d 957] |
| December 16, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sean Hibbert, Also Known as SP,Appellant. |
Arza R. Feldman, Uniondale, NY (Steven A. Feldman of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered June 26, 2014, convicting him of murder in the second degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the County Court erroneously admitted into evidencehearsay statements made by the victim before his death implicating the defendant in theshooting is without merit. The County Court properly admitted under the excitedutterance exception to the hearsay rule the statements of the victim that were made withinminutes of the shooting while he was being transported to the hospital (see People v Cantave, 21NY3d 374, 381 [2013]; People v Johnson, 1 NY3d 302, 305-306 [2003]; People v Dawson, 130 AD3d750 [2015]). The court also properly admitted under the excited utterance exceptionto the hearsay rule the statements made by the victim to hospital personnel,notwithstanding that the statements were made approximately 30 minutes after theincident (see People v Brown, 70 NY2d 513, 513 [1987]). There was nothing inthe record suggesting that the victim, 30 minutes after the incident, was any less underthe influence of the stress and excitement of being shot twice than he was immediatelyafter the shooting (see id. at 520). To the contrary, the surrounding circumstancesreasonably justify the conclusion that the victim's statements were not made under theimpetus of studied reflection (see generally People v Hernandez, 127 AD3d 991, 992[2015], lv granted 26 NY3d 930 [2015]).
The defendant contends that it was reversible error to permit the prosecutor to showvarious witnesses a photograph of the victim while he was alive because his identity wasnever at issue. This contention is unpreserved for appellate review (see CPL470.05 [2]; People vTexidor, 123 AD3d 746 [2014]), and we decline to review the issue in theexercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]). Rivera,J.P., Chambers, Sgroi and LaSalle, JJ., concur.