PEOPLE v. SING YUEN CHEN

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

The PEOPLE, etc., Respondent, v. SING YUEN CHEN, a/k/a Ah Moon, Appellant.

Decided: September 28, 1998

Before COPERTINO, J.P., SANTUCCI, GOLDSTEIN and LUCIANO, JJ. Steven A. Feldman, Roslyn, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Lesley Carver of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered January 10, 1997, convicting him of murder in the second degree, hindering prosecution in the first degree, tampering with physical evidence (two counts), and criminal possession of a weapon in the fourth degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The photograph of the victim taken while he was still alive and smiling was admissible for the purpose of identification since over 90 percent of the victim's body, excluding the right side of the face, had been charred (see, People v. Pobliner, 32 N.Y.2d 356, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).   After determining that the photograph corroborated the identification testimony of the victim's uncle, that it was not offered solely to arouse the passions of the jury, and that there was no potential prejudice to the defendant, the trial court properly received the photograph into evidence (see, People v. Wood, 79 N.Y.2d 958, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Stevens, 76 N.Y.2d 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278;  People v. Webster, 248 A.D.2d 738, 670 N.Y.S.2d 871).

The defendant's contention that the trial court impermissibly admitted testimony of an uncharged crime is unpreserved for appellate review (see, CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the defendant failed to demonstrate that he was prejudiced by the witness's brief statement, which was vague and ambiguous at best, that the defendant possessed drugs.

 The defendant's contention that the trial court erroneously admitted testimony of a prior consistent statement is without merit.   The defense counsel's questioning of a witness during cross-examination inferred that the testimony was a recent fabrication, thus opening the door for the prosecutor, on redirect, to rebut this charge (see, People v. Seit, 86 N.Y.2d 92, 95-96, 629 N.Y.S.2d 998, 653 N.E.2d 1168;  People v. McDaniel, 81 N.Y.2d 10, 16, 595 N.Y.S.2d 364, 611 N.E.2d 265;  People v. McClean, 69 N.Y.2d 426, 515 N.Y.S.2d 428, 508 N.E.2d 140).

The defendant's sentence was not excessive (see, People v. Pena, 50 N.Y.2d 400, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).   The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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