People v. Otero

288 A.D.2d 67, 732 N.Y.S.2d 343, 2001 N.Y. App. Div. LEXIS 10832

Opinion

—Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered December 9, 1994, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The court properly precluded defendant from introducing evidence of third-party culpability since the proffered evidence was both inadmissible as hearsay and lacking in any probative value (see, People v Primo, 96 NY2d 351). The hearsay statement attributed to the third party was not admissible as a declaration against penal interest since it was not shown to be based on his personal knowledge of the instant crime, nor was it shown to be reliable (People v Settles, 46 NY2d 154, 167-170). There was no connection shown between the shooting described by the third party and the instant crime. The third party’s hearsay declaration gave a vague description of the shooting of an unspecified victim, and the few particulars contained in his narrative were largely inconsistent with the facts of the instant case. Moreover, the two eyewitnesses to the crime were shown the photograph of the third party and each testified that the shooter was defendant and not the third party. Concur — Andrias, J. P., Wallach, Lerner, Saxe and Friedman, JJ.