PEOPLE v. EVES

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Scott C. EVES, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, PINE, AND HAYES, JJ. Tully, Rinckey & Associates, PLLC, Albany (Greg T. Rinckey of Counsel), for Defendant-Appellant. Cindy F. Intschert, District Attorney, Watertown (Peter S. Blodgett of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him of criminal mischief in the third degree (Penal Law § 145.05[2] ).   Contrary to defendant's contention, County Court properly admitted a bystander's statement in evidence under the present sense impression exception to the hearsay rule (see generally People v. Buie, 86 N.Y.2d 501, 505-509, 634 N.Y.S.2d 415, 658 N.E.2d 192;  People v. Dann, 17 A.D.3d 1152, 793 N.Y.S.2d 852, lv. denied 5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265;  People v. Ortiz, 1 A.D.3d 1017, 1018, 767 N.Y.S.2d 361, lv. denied 1 N.Y.3d 632, 777 N.Y.S.2d 30, 808 N.E.2d 1289).  “There was sufficient corroboration, by means of independent proof, of both the contemporaneity and reliability of the out-of-court declaration” (Ortiz, 1 A.D.3d at 1018, 767 N.Y.S.2d 361;  see generally People v. Vasquez, 88 N.Y.2d 561, 574-575, 647 N.Y.S.2d 697, 670 N.E.2d 1328;  People v. Brown, 80 N.Y.2d 729, 734-736, 594 N.Y.S.2d 696, 610 N.E.2d 369).   Also contrary to defendant's contention, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: