People v. Gutierrez

248 A.D.2d 295, 670 N.Y.S.2d 85, 1998 N.Y. App. Div. LEXIS 3273

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 26, 1998
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered June 11, 1996, convicting defendant, after a jury trial, of murder in the second degree, attempted murder in the second degree, assault in the second degree, reckless endangerment in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to consecutive terms of 15 years to life, 7V2 to 15 years, and 3V2 to 7 years for the murder, attempted murder, and reckless endangerment convictions, respectively, concurrent with concurrent terms of 3V2 to 7 years and 7V2 to 15 years for the remaining convictions, respectively, unanimously affirmed.

The 911 call by an anonymous caller three minutes after the shooting was sufficiently contemporaneous to qualify for admission under the present sense impression exception. In any event, any error in admission of this evidence was harmless in view of the overwhelming evidence of defendant’s guilt (People v Johnson, 213 AD2d 241, lv denied 86 NY2d 782).

The evidence of defendant’s guilt of depraved indifference murder was legally sufficient “notwithstanding that the evidence would have also supported a finding of intentional murder” (People v Arce, 242 AD2d 508, 509). There was ample evidence supporting defendant’s accessorial liability for depraved indifference murder, as charged by the court.

Since separate acts toward separate victims were involved, the court properly imposed consecutive sentences for the reckless endangerment and murder convictions (see, People v Creek-more, 106 AD2d 260, 261, Iv denied 65 NY2d 978; see also, People v Brathwaite, 63 NY2d 839, 842-843).

We have reviewed defendant’s remaining contentions and find them to be without merit.

Concur — Ellerin, J. P., Wallach, Rubin, Andrias and Saxe, JJ.