PEOPLE v. JONES (2009)

Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the second degree (Penal Law § 125.15[1] ) and two counts of criminal possession of a weapon in the third degree (§ 265.02[1], [former (4) ] ).

Contrary to defendant's contention, County Court properly admitted the statements of the victim made shortly after the shooting under the excited utterance exception to the hearsay rule inasmuch as the statements were made while she was under the extraordinary stress of her injuries (see People v. Cotto, 92 N.Y.2d 68, 78-79, 677 N.Y.S.2d 35, 699 N.E.2d 394). Also contrary to defendant's contention, the court properly admitted in evidence the victim's statements made immediately prior to the shooting under the present sense impression exception to the hearsay rule. A witness for the People testified that she heard the victim say to defendant, “Boy, put this thing down. You don't know if it has a safety on it or not.” Shortly thereafter, the witness heard a gunshot in the victim's apartment. The statements constitute a present sense impression, because they were made while the declarant was perceiving “the event as it was unfolding” (People v. Vasquez, 88 N.Y.2d 561, 574, 647 N.Y.S.2d 697, 670 N.E.2d 1328), and they were sufficiently corroborated by defendant's statement to the police (see id. at 575-576, 647 N.Y.S.2d 697, 670 N.E.2d 1328).

Finally, the court did not err in imposing consecutive sentences (see People v. Salcedo, 92 N.Y.2d 1019, 1021-1022, 684 N.Y.S.2d 480, 707 N.E.2d 435), and the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: