PEOPLE v. THOMPSON (1998)

Judgment, Supreme Court, New York County (Felice Shea, J., at first trial and sentencing;  Edward McLaughlin, J., at second trial and sentencing), rendered May 11, 1995, convicting defendant, after separate jury trials, of one count of attempted grand larceny in the fourth degree, two counts of criminal mischief in the fourth degree, and one count of petit larceny, and sentencing him to two consecutive prison terms of 1 year concurrent with two concurrent prison terms of 1 year, unanimously affirmed.

On the existing record, which defendant has not sought to amplify by a CPL 440.10 motion (see, People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486), we conclude that defendant received effective assistance of counsel at both trials (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant has not demonstrated the “absence of strategic or other legitimate explanations” for the conduct of counsel at the first trial or that of the new counsel assigned for the retrial that followed a hung jury as to certain counts (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698), or that counsel's purported errors caused any prejudice (People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102).

At both trials, the court properly admitted into evidence a tape of a 911 call under the present sense impression exception to the hearsay rule, since the tape, in edited form, was a “spontaneous description of events made contemporaneously with the observation of those events” (People v. Brown, 80 N.Y.2d 729, 734, 594 N.Y.S.2d 696, 610 N.E.2d 369) and was “sufficiently corroborated” (supra, at 734, 594 N.Y.S.2d 696, 610 N.E.2d 369) by testimony that defendant was found in the parking lot and that a car's window was shattered.

MEMORANDUM DECISION.