PEOPLE v. WIMMS (2000)

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

The PEOPLE, etc., respondent, v. Donnell WIMMS, appellant.

Decided: May 08, 2000

FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ.

Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Stephen Dixon-Gordon of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered July 23, 1998, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The court correctly refused to permit the defendant's mother to testify to the confessions the defendant's brother made to her. The defense counsel failed to demonstrate that the defendant's brother was unavailable (see, e.g., People v. Anderson, 153 A.D.2d 893, 545 N.Y.S.2d 604). Moreover, there was insufficient evidence to assure the trustworthiness and reliability of the brother's out-of-court statements (see, e.g., People v. Shortridge, 65 N.Y.2d 309, 491 N.Y.S.2d 298, 480 N.E.2d 1080). Therefore, the confessions do not qualify as declarations against penal interest, and are inadmissible hearsay (see, People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612).

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

MEMORANDUM BY THE COURT.

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