| People v Cummings |
| 2016 NY Slip Op 08298 [145 AD3d 490] |
| December 8, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Twanek Cummings, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon ofcounsel), for appellant.
Twanek Cummings, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J., at jury selection;Bruce Allen, J., at remainder of trial and sentencing), rendered January 16, 2014,convicting defendant of assault in the first degree, two counts of attempted assault in thefirst degree, two counts of criminal possession of a weapon in the second degree, andtwo counts of assault in the second degree, and sentencing him, as a second felonyoffender, to an aggregate term of 18 years, unanimously affirmed.
The court providently admitted, as an excited utterance, the statement of anunidentified bystander, audible on the 911 call made by one of the victims, thatimplicated defendant. All of the circumstances—most significantly that thestatement was made immediately after the shooting—established a stronglikelihood that the declarant observed the shooting (see People v Fratello, 92NY2d 565, 571 [1998], cert denied 526 US 1068 [1999]).
Although a contrary ruling on the excited utterance issue had been made by aprevious judge, who presided over part of jury selection but was unable to continuebecause of illness, this circumstance did not foreclose the successor judge's ruling byoperation of the law of the case doctrine. The ruling was evidentiary and did not fallwithin the ambit of that doctrine (see People v Evans, 94 NY2d 499 [2000]).Defendant does not dispute that this was the type of ruling that, under Evans, maybe revisited by a successor judge in a retrial. We see no reason to apply a different rulewhere there are successive judges in the same trial (see People v Johnson, 301AD2d 462 [1st Dept 2003], lv denied 99 NY2d 655 [2003]; People vMcLeod, 279 AD2d 372 [1st Dept 2001], lv denied 96 NY2d 921[2001]).
In any event, any error in admitting the declaration was harmless (see People vCrimmins, 36 NY2d 230 [1975]).
We have considered and rejected defendant's pro se challenge to the sufficiency ofthe evidence. Concur—Mazzarelli, J.P., Friedman, Acosta, Andrias andMoskowitz, JJ.