PEOPLE v. JOHNSON

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

The PEOPLE of the State of New York, Respondent, v. Charles JOHNSON, etc., Defendant-Appellant.

Decided: January 25, 2005

TOM, J.P., ANDRIAS, SAXE, MARLOW, NARDELLI, JJ. Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Paul Hare of counsel), for respondent.

Judgment, Supreme Court, New York County (Bernard J. Fried, J.), rendered April 3, 2003, convicting defendant, after a jury trial, of attempted robbery in the first degree, and sentencing him, as a second felony offender, to a term of 7 1/212 years, unanimously affirmed.

 The court properly precluded defendant from establishing that, in response to a pedigree question during arrest processing, he stated that he was left-handed.   This constituted hearsay, offered for its truth, and there was no applicable hearsay exception (see People v. Reynoso, 73 N.Y.2d 816, 819, 537 N.Y.S.2d 113, 534 N.E.2d 30 [1988] ).   To the extent that defendant is raising a constitutional claim, such claim is unpreserved and without merit.   While defendant claims that his alleged left-handedness was material to his defense, there was nothing to prevent him from offering competent evidence on that subject.