People v. Boyer

Appellate Division of the Supreme Court of New York

People v. Boyer

15 A.D.3d 192, 789 N.Y.S.2d 45, 2005 N.Y. App. Div. LEXIS 935

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 3, 2005

StatusPublished

This text of 15 A.D.3d 192 (People v. Boyer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Boyer, 15 A.D.3d 192, 789 N.Y.S.2d 45, 2005 N.Y. App. Div. LEXIS 935 (N.Y. Ct. App. 2005).

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Opinion

Judgment, Supreme Court, New York County (Edward McLaughlin, J), rendered June 26, 2002, convicting defendant, after a jury trial, of two counts of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 18 years to life, unanimously affirmed.

A police officer’s identification of defendant as the person he had been pursuing only moments before constituted a confirmatory identification that was exempt from the notice and hearing requirements of CPL article 710 (People v James, 220 AD2d 370 [1995], lv denied 88 NY2d 937 [1996]; People v Dueno, 203 AD2d 476 [1994]; compare People v Newball, 76 NY2d 587 [1990] [identification weeks after officer’s initial viewing not confirmatory]).

The court properly precluded defendant from introducing a hearsay declaration by an unidentified witness. The declaration was not admissible as a present sense impression because the necessary verification and corroboration were lacking (see People v Vasquez, 88 NY2d 561, 574-576 [1996]). Since the declaration lacked sufficient indicia of reliability (see People v Maisonette, 8 AD3d 158 [2004], lv denied 3 NY3d 677 [2004]), the court properly rejected defendant’s alternate argument that the declaration was admissible as a matter of due process (see Chambers v Mississippi, 410 US 284 [1973]). Furthermore, even if deemed reliable, this evidence had only minimal exculpatory value. To the extent that defendant is raising a claim under Brady v Maryland (373 US 83 [1963]), such claim is unpreserved and unavailing.

[193]*193While some of the prosecutor’s summation comments were inappropriate, we conclude that the summation did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved and without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant’s mandatory sentence was triggered solely by his prior convictions (see Almendarez-Torres v United States, 523 US 224 [1998]). Concur — Mazzarelli, J.P., Ellerin, Nardelli, Gonzalez and Catterson, JJ.

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Judgment, Supreme Court, New York County (Edward McLaughlin, J), rendered June 26, 2002, convicting defendant, after a jury trial, of two counts of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 18 years to life, unanimously affirmed.

A police officer’s identification of defendant as the person he had been pursuing only moments before constituted a confirmatory identification that was exempt from the notice and hearing requirements of CPL article 710 (People v James, 220 AD2d 370 [1995], lv denied 88 NY2d 937 [1996]; People v Dueno, 203 AD2d 476 [1994]; compare People v Newball, 76 NY2d 587 [1990] [identification weeks after officer’s initial viewing not confirmatory]).

The court properly precluded defendant from introducing a hearsay declaration by an unidentified witness. The declaration was not admissible as a present sense impression because the necessary verification and corroboration were lacking (see People v Vasquez, 88 NY2d 561, 574-576 [1996]). Since the declaration lacked sufficient indicia of reliability (see People v Maisonette, 8 AD3d 158 [2004], lv denied 3 NY3d 677 [2004]), the court properly rejected defendant’s alternate argument that the declaration was admissible as a matter of due process (see Chambers v Mississippi, 410 US 284 [1973]). Furthermore, even if deemed reliable, this evidence had only minimal exculpatory value. To the extent that defendant is raising a claim under Brady v Maryland (373 US 83 [1963]), such claim is unpreserved and unavailing.

[193]*193While some of the prosecutor’s summation comments were inappropriate, we conclude that the summation did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved and without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant’s mandatory sentence was triggered solely by his prior convictions (see Almendarez-Torres v United States, 523 US 224 [1998]). Concur — Mazzarelli, J.P., Ellerin, Nardelli, Gonzalez and Catterson, JJ.

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15 A.D.3d 192, 789 N.Y.S.2d 45, 2005 N.Y. App. Div. LEXIS 935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-boyer-nyappdiv-2005.

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