PEOPLE v. VIGLIOTTI (2000)

 On appeal from a judgment convicting him of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1] ) and assault in the first degree (Penal Law § 120.10[1] ), defendant contends that the statements of the victim immediately after he was shot in the chest were improperly admitted as excited utterances.   We disagree.   The statements were made while the victim was under the stress of the event (see, People v. Edwards, 47 N.Y.2d 493, 496-497, 419 N.Y.S.2d 45, 392 N.E.2d 1229;  see also, People v. Cotto, 92 N.Y.2d 68, 78-79, 677 N.Y.S.2d 35, 699 N.E.2d 394).   Although there was conflicting evidence about the victim's degree of stress, the determination of spontaneity is a matter entrusted to the discretion of the trial court (see, People v. Simpson, 238 A.D.2d 611, 612, 656 N.Y.S.2d 765, lv. denied 90 N.Y.2d 910, 663 N.Y.S.2d 522, 686 N.E.2d 234;  People v. Torres, 175 A.D.2d 635, 636, 572 N.Y.S.2d 269, lv. denied 78 N.Y.2d 1082, 577 N.Y.S.2d 246, 583 N.E.2d 958).   The fact that a statement was made in response to a question is merely one factor to consider (see, People v. Cotto, supra, at 79, 677 N.Y.S.2d 35, 699 N.E.2d 394).   Supreme Court did not abuse its discretion in declining to hold a pretrial hearing on the admissibility of those statements (cf., People v. Liccione, 63 A.D.2d 305, 316, 407 N.Y.S.2d 753, affd. 50 N.Y.2d 850, 430 N.Y.S.2d 36, 407 N.E.2d 1333, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799).

 We further conclude that the conviction is supported by legally sufficient evidence.   The evidence established that defendant and the victim were arguing moments before the shooting, the shot was from a distance of two feet or less and the wound was perilously close to the victim's heart.   Medical evidence established that the victim faced a substantial risk of death “in the absence of speedy medical intervention” (People v. Gordon, 257 A.D.2d 533, 534, 685 N.Y.S.2d 28, lv. denied 93 N.Y.2d 899, 689 N.Y.S.2d 711, 711 N.E.2d 987).   Thus, there is a valid line of reasoning and permissible inferences that could lead a rational person to conclude that defendant had the intent necessary for both the attempted murder and assault charges and caused serious physical injury (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  see, e.g., People v. Holmes, 260 A.D.2d 942, 943, 690 N.Y.S.2d 292, lv. denied 93 N.Y.2d 1020, 697 N.Y.S.2d 578, 719 N.E.2d 939).   Although no weapon was recovered, there was sufficient evidence to establish that defendant possessed a gun at the time of the shooting.   The police found a shell casing at the location and the victim's statements after the incident established that defendant “shot” the victim.

 The court properly denied defendant's request for a missing witness charge when the victim failed to appear for trial.   The fact that the victim provided defense counsel with an affidavit in which he recanted his statements establishes that he could not reasonably be expected to testify in the People's favor (see, People v. Congilaro, 159 A.D.2d 964, 552 N.Y.S.2d 775, lv. denied 76 N.Y.2d 786, 559 N.Y.S.2d 991, 559 N.E.2d 685).   In addition, the victim left the State after service of a subpoena, which rendered him unavailable to the People and established that he was not under their control (see, People v. Whetstone, 130 A.D.2d 969, 516 N.Y.S.2d 151, lv. denied 70 N.Y.2d 718, 519 N.Y.S.2d 1055, 513 N.E.2d 1323).   The court also properly denied defendant's request for a circumstantial evidence charge.   The excited utterances of a victim identifying the shooter constitute direct evidence of guilt (see, People v. Pagan, 177 A.D.2d 604, 605, 576 N.Y.S.2d 311, lv. denied 79 N.Y.2d 862, 580 N.Y.S.2d 734, 588 N.E.2d 769, 79 N.Y.2d 1005, 584 N.Y.S.2d 460, 594 N.E.2d 954, 81 N.Y.2d 1078, 601 N.Y.S.2d 597, 619 N.E.2d 675).   Any challenge to the supplemental charge is unpreserved for our review because defendant failed to object to it (see, People v. Scott, 262 A.D.2d 1021, 693 N.Y.S.2d 379, lv. denied 93 N.Y.2d 1027, 697 N.Y.S.2d 586, 719 N.E.2d 947).   The court properly denied the request of defendant to charge the jury that he was denied his right of confrontation;  the admission of the excited utterances did not deprive defendant of that right (see, People v. Nieves, 67 N.Y.2d 125, 131, n. 2, 501 N.Y.S.2d 1, 492 N.E.2d 109).

 We reject the contention of defendant that the court failed to rule on his pretrial motion.   In defense counsel's presence, the court stated, “I'm going to deny your application with leave to renew”.   That statement constitutes a ruling, and defendant thereafter failed to renew the motion, rendering it abandoned (see, People v. Long, 263 A.D.2d 357, 693 N.Y.S.2d 543, lv. denied 93 N.Y.2d 1044, 697 N.Y.S.2d 876, 720 N.E.2d 96).   Defendant was adequately advised of his right to be present at court proceedings and the consequences of his failure to appear (see, People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313).   Therefore, defendant's deliberate failure to appear for sentencing constitutes a waiver of the right to be present (see, People v. Parker, supra, at 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313;  see also, People v. Robinson, 181 A.D.2d 983, 984, 582 N.Y.S.2d 305, lv. denied 80 N.Y.2d 837, 587 N.Y.S.2d 921, 600 N.E.2d 648).

 The contention of defendant that the indictment was improperly based on perjured testimony, raised for the first time on appeal, is not preserved for our review (see, People v. Youngs, 212 A.D.2d 1001, 622 N.Y.S.2d 835, lv. denied 85 N.Y.2d 982, 629 N.Y.S.2d 742, 653 N.E.2d 638).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: