PEOPLE v. CARR (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered March 3, 1998, convicting him of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant argues that the admission of two 911 emergency telephone number tapes into evidence improperly bolstered the trial testimony of the witness who made those calls.   However, one of the tapes was properly admitted under the present sense impression exception to the hearsay rule since it contained the caller's statements concerning his observations of the defendant, made contemporaneously with those observations (see, People v. Hutchinson, 255 A.D.2d 396, 681 N.Y.S.2d 42;  People v. Thompson, 253 A.D.2d 717, 679 N.Y.S.2d 365).   The other tape was properly admitted under the excited utterance exception to the hearsay rule as it contained the caller's statements made immediately after watching the defendant stab the victim (see, People v. Vasquez, 88 N.Y.2d 561, 647 N.Y.S.2d 697, 670 N.E.2d 1328;  People v. Molinari, 252 A.D.2d 532, 678 N.Y.S.2d 106).   Accordingly, the defendant's claim of improper bolstering is without merit (see, People v. Buie, 86 N.Y.2d 501, 511, 634 N.Y.S.2d 415, 658 N.E.2d 192).

The defendant's contention that the evidence was legally insufficient to disprove his defense of justification is unpreserved for appellate review (see, People v. Cherry, 275 A.D.2d 796, 714 N.Y.S.2d 221).   In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.