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

The PEOPLE of the State of New York, Respondent, v. Samuel JAMES, Defendant-Appellant.

Decided: February 10, 1998

Before SULLIVAN, J.P., and MILONAS, MAZZARELLI and ANDRIAS, JJ. Peter Hinckley, for Respondent. Martin B. Adelman, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered June 7, 1995, convicting defendant, after a jury trial, of perjury in the first degree (2 counts), and sentencing him to concurrent terms of 4 months concurrent with 5 years probation on each conviction, unanimously affirmed.   The matter is remanded to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

The evidence of guilt was legally sufficient and the verdict was not against the weight of the evidence.   We see no reason to disturb the jury's credibility determinations.   The requisite element of materiality may be readily inferred from the evidence.

 The court properly admitted, under appropriate exceptions to the hearsay rule, several out-of-court statements that tended to show that defendant's denial of having attended a certain meeting was false.   Certain of these statements were admissible as declarations of the unavailable declarant's own intent to meet with defendant (see, People v. Bernard, 214 A.D.2d 578, 625 N.Y.S.2d 67) and the other statements were admissible as declarations against this declarant's penal interest, including the portions implicating defendant (People v. Brensic, 70 N.Y.2d 9, 517 N.Y.S.2d 120, 509 N.E.2d 1226).

 The court properly allowed the prosecutor to elicit limited testimony concerning his main witness's state of mind, since it served to explain the witness's delay in reporting wrongdoing to the proper authorities and since the court carefully instructed the jury on several occasions concerning the limited purpose of such testimony (see, People v. Wortherly, 68 A.D.2d 158, 163-164, 416 N.Y.S.2d 594).

We perceive no abuse of sentencing discretion.

We have considered defendant's remaining contentions and find them to be without merit.


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