PEOPLE v. SIMMS (1997)

Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25), assault in the first degree (Penal Law § 120.10) and criminal possession of a weapon in the second degree (Penal Law § 265.03).

 The contention of defendant that he was deprived of a fair trial by the improper bolstering of his identification by the victim, an exgirlfriend, is not preserved for our review (see, CPL 470.05[2];  People v. Love, 57 N.Y.2d 1023, 1025, 457 N.Y.S.2d 474, 443 N.E.2d 948).   In any event, the victim's testimony did not constitute improper bolstering.   The statement of the victim to her friend that defendant shot her was made almost immediately after the attack.   The similar statement of the victim to Officer Creta when he arrived at the crime scene also was made within minutes after the attack.   Because those statements were made under “the stress of excitement caused by an external event”, they fall under the excited utterance exception to the hearsay rule (People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229;  see, People v. Nieves, 67 N.Y.2d 125, 135, 501 N.Y.S.2d 1, 492 N.E.2d 109, mot. to amend remittitur denied 67 N.Y.2d 1028, 503 N.Y.S.2d 1026, 494 N.E.2d 459;  Prince, Richardson on Evidence § 8-604 [Farrell 11th ed] ).

 Further, in view of the fact that the victim was semi-conscious and thought she was going to die, her statements to Officer Creta while he drove her to the hospital and while she was being treated in the hospital “were not made under the impetus of studied reflection” (People v. Edwards, supra, at 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229;  see, People v. Brown, 70 N.Y.2d 513, 520, 522 N.Y.S.2d 837, 517 N.E.2d 515).   The statements were admissible as excited utterances and did not constitute improper bolstering (see, People v. Buie, 86 N.Y.2d 501, 511, 634 N.Y.S.2d 415, 658 N.E.2d 192;  People v. Farrell, 228 A.D.2d 693, 694, 646 N.Y.S.2d 124, lv. denied 88 N.Y.2d 984, 649 N.Y.S.2d 391, 672 N.E.2d 617).

 Although the testimony of Officer Reitter that the victim told him four days after the attack that it was defendant who shot her and his testimony that Officer Creta gave him defendant's name at the hospital was improper (see, People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841;  People v. Morales, 227 A.D.2d 648, 651, 643 N.Y.S.2d 217, lv. denied 89 N.Y.2d 926, 654 N.Y.S.2d 729, 677 N.E.2d 301), the error is harmless in light of the “clear and strong” identification of defendant by the victim and the other evidence of defendant's guilt (People v. Mobley, 56 N.Y.2d 584, 586, 450 N.Y.S.2d 302, 435 N.E.2d 672;  see, People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Cunningham, 233 A.D.2d 845, 649 N.Y.S.2d 629, lv. denied 89 N.Y.2d 1091, 660 N.Y.S.2d 384, 682 N.E.2d 985;  People v. Wheaton, 148 A.D.2d 931, 932, 539 N.Y.S.2d 169, lv. denied 74 N.Y.2d 853, 546 N.Y.S.2d 1018, 546 N.E.2d 201).

 Defendant also failed to preserve for our review his contention that the prosecutor improperly cross-examined defendant's alibi witness (see, CPL 470.05[2];  People v. Dawson, 50 N.Y.2d 311, 324, 428 N.Y.S.2d 914, 406 N.E.2d 771).   In any event, the contention is without merit.   Where, as here, the prosecutor lays a proper foundation, “there is nothing inherently improper about cross-examining a defense witness concerning his failure to come forward at an earlier date” (People v. Dawson, supra, at 321, 428 N.Y.S.2d 914, 406 N.E.2d 771).

 We reject the contention of defendant that he was denied effective assistance of counsel.   Defense counsel actively pursued pretrial discovery, raised an alibi defense at trial, vigorously cross-examined the People's witnesses and made effective opening and closing statements (see, People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Kroemer, 204 A.D.2d 1017, 1018, 613 N.Y.S.2d 304, lv. denied 84 N.Y.2d 828, 1012, 617 N.Y.S.2d 148, 622 N.Y.S.2d 924, 641 N.E.2d 169, 647 N.E.2d 130).   Any error involving the introduction of hearsay evidence and in failing to object to inadmissible bolstering testimony “was at most a mistaken judgment as to trial strategy and cannot be characterized as ineffective assistance of counsel” (People v. Jackson, 52 N.Y.2d 1027, 1029, 438 N.Y.S.2d 299, 420 N.E.2d 97;  see, People v. Beaty, 231 A.D.2d 909, 648 N.Y.S.2d 356, lv. denied 89 N.Y.2d 919, 654 N.Y.S.2d 720, 677 N.E.2d 292).

Finally, the contention of defendant that he was deprived of a fair trial because of cumulative error is without merit.

Judgment unanimously affirmed.

MEMORANDUM: