PEOPLE v. CARVALHO (1998)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Joaquim CARVALHO, Appellant.

Decided: April 29, 1998

Before LAWTON, J.P., and HAYES, CALLAHAN, BALIO and BOEHM, JJ.

Edward J. Nowak by James Eckert, Rochester, for Appellant. Howard R. Relin by Robert Mastrocola, Rochester, for Respondent.

Defendant appeals from a judgment convicting him after a jury trial of arson in the second degree (Penal Law § 150.15). We reject his contention that Supreme Court erred in admitting the testimony of his stepdaughter that his wife exclaimed, “[h]e set the house on fire”, as she ran from the house immediately after the fire started. That testimony was properly admitted under the present sense impression exception to the hearsay rule (see, People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369).

By objecting to the admission of his co-worker's testimony on a ground different from the ground raised on appeal, defendant failed to preserve his present contention for our review (see, People v. Osuna, 65 N.Y.2d 822, 824, 493 N.Y.S.2d 119, 482 N.E.2d 915; People v. Avellanet, 242 A.D.2d 865, 662 N.Y.S.2d 345). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Judgment unanimously affirmed.

MEMORANDUM:

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