| People v Chin |
| 2017 NY Slip Op 01880 [148 AD3d 925] |
| March 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wayne Chin, Appellant. |
Lynn W. L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant, and appellantpro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, andGamaliel Marrero of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser,J.), rendered October 17, 2009, convicting him of murder in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of murder in the second degree in connection with the shootingdeath of the victim on June 12, 2001.
The defendant's contention that the Supreme Court erred in admitting into evidence therecording of a 911 emergency telephone call by the victim's niece is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, contrary to the defendant's contention, therecording of the 911 call was properly admitted into evidence under the excited utterance andpresent sense impression exceptions to the hearsay rule, as the probative value of this evidenceoutweighed any prejudicial effect (seePeople v Wallace, 79 AD3d 1075, 1075-1076 [2010]; People v Carrenard, 56 AD3d 486[2008]).
The defendant contends that he was deprived of a fair trial when the prosecutor elicitedtestimony from a police officer and the victim's niece regarding statements made by the victim'sson at the scene, which improperly bolstered the testimony of the victim's son identifying thedefendant as the shooter. The defendant's contention is partially unpreserved for appellate review,as he only raised a general objection with respect to the challenged testimony from the victim'sniece (see People v Leon, 61 AD3d776, 777 [2009]). In any event, the defendant's contention is without merit. If a profferedstatement also meets the requirements to be admitted as an excited utterance, its admission wouldbe proper, notwithstanding the characterization as a prior consistent statement (see People vBuie, 86 NY2d 501, 511 [1995]; People v Coward, 292 AD2d 630, 631 [2002]).Here, the Supreme Court properly admitted the testimony of the police officer and the victim'sniece concerning the statements of the victim's son at the scene identifying the defendant as theshooter under the excited utterance exception to the hearsay rule, and that testimony did notconstitute improper bolstering (seePeople v Whitley, 59 AD3d 746, 747 [2009]; People v Stevens, 57 AD3d 1515, [*2]1516 [2008]; People v Farrell, 228 AD2d 693, 694[1996]).
The record as a whole demonstrates that the defendant received effective assistance ofcounsel under both federal and state constitutional standards (see Strickland vWashington, 466 US 668 [1984]; People v Benevento, 91 NY2d 708, 712 [1998];People v Baldi, 54 NY2d 137, 147 [1981]).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Chambers, J.P., Roman, LaSalle and Barros, JJ., concur.