PEOPLE v. BOYER (2005)

Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered June 26, 2002, convicting defendant, after a jury trial, of two counts of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 18 years to life, unanimously affirmed.

 A police officer's identification of defendant as the person he had been pursuing only moments before constituted a confirmatory identification that was exempt from the notice and hearing requirements of CPL article 710 (People v. James, 220 A.D.2d 370, 633 N.Y.S.2d 280 [1995], lv. denied 88 N.Y.2d 937, 647 N.Y.S.2d 171, 670 N.E.2d 455 [1996];  People v. Dueno, 203 A.D.2d 476, 611 N.Y.S.2d 15 [1994];  compare People v. Newball, 76 N.Y.2d 587, 561 N.Y.S.2d 898, 563 N.E.2d 269 [1990] [identification weeks after officer's initial viewing not confirmatory] ).

 The court properly precluded defendant from introducing a hearsay declaration by an unidentified witness.   The declaration was not admissible as a present sense impression because the necessary verification and corroboration were lacking (see People v. Vasquez, 88 N.Y.2d 561, 574-576, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ).   Since the declaration lacked sufficient indicia of reliability (see People v. Maisonette, 8 A.D.3d 158, 779 N.Y.S.2d 65 [2004], lv. denied 3 N.Y.3d 677, 784 N.Y.S.2d 16, 817 N.E.2d 834 [2004] ), the court properly rejected defendant's alternate argument that the declaration was admissible as a matter of due process (see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 [1973] ).   Furthermore, even if deemed reliable, this evidence had only minimal exculpatory value.   To the extent that defendant is raising a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963], such claim is unpreserved and unavailing.

 While some of the prosecutor's summation comments were inappropriate, we conclude that the summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

 Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved and without merit (see People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ).   Defendant's mandatory sentence was triggered solely by his prior convictions (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).