People v. Dawson

164 A.D.2d 832, 559 N.Y.S.2d 886, 1990 N.Y. App. Div. LEXIS 10812

Opinion

Judgment of the Supreme Court, New York County (James Leif, J., at trial and sentence), rendered on November 12, 1987, convicting defendant, after jury trial, of robbery in the first degree (two counts), robbery in the second degree and criminal possession of a weapon in the third degree and sentencing defendant, as a second violent felony offender, to 6 to 12 years’ imprisonment on each of the robbery counts and 3 Vi to 7 years on the weapon count, all terms to run concurrently, unanimously affirmed.

Even if the challenged statements that defendant discarded a gun and a radio were not admissible under the excited utterance exception to the hearsay rule (see, People v Nieves, 67 NY2d 125, 135), their admission can be deemed harmless in light of the overwhelming evidence of defendant’s guilt. Not only was there ample evidence connecting defendant to the stolen radio and the gun used in the robbery, but defendant was identified near the scene, almost immediately after the robbery, and fled when he saw the police. Moreover, the remainder of the evidence, even without these statements, clearly warrants an inference that the items were dropped during the police officers’ pursuit of defendant.

Pursuant to a stipulation, dated February 21, 1990, between the District Attorney and counsel for appellant, the parties agreed that the ballistics lab request form filled out by the police officer was the duplicative equivalent of the complaint report. This resolves the Rosario issue for which this matter was remitted and the appeal held in abeyance.

We have examined the remaining issues raised by appellant and find them to be without merit. Concur—Murphy, P. J., Ross, Milonas, Kassal and Rubin, JJ.