People v. Donahue

50 A.D.3d 820, 854 N.Y.S.2d 653

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 2008
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered March 7, 2005, convicting him of arson in the first degree and murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the County Court properly admitted into evidence statements made by the decedent after the fire in question under the excited utterance exception to the hearsay rule (see People v Edwards, 47 NY2d 493, 497 [1979]). Further, the admission of these statements did not violate the defendant’s right to confrontation because they were not testimonial in nature (see Crawford v Washington, 541 US 36 [2004]; People v Bradley, 8 NY3d 124 [2006]; People v Gantt, 48 AD3d 59 [2007], lv denied 10 NY3d 765 [2008]).

The defendant’s contentions regarding the testimony of the People’s expert witnesses are unpreserved for appellate review and we decline to review them in the exercise of our interest of justice jurisdiction (see CPL 470.05 [2]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; CPL 470.15 [5]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are without merit. Lifson, J.P., Florio, Eng and Chambers, JJ., concur.