People v. Shelter

Appellate Division of the Supreme Court of New York

People v. Shelter

288 A.D.2d 929, 732 N.Y.S.2d 192, 2001 N.Y. App. Div. LEXIS 10716

Appellate Division of the Supreme Court of the State of New York·Decided November 9, 2001·Published

Opinion

—Judgment unanimously affirmed. Memorandum: County Court properly exercised its discretion in admitting a statement of an off-duty police officer pursuant to the excited utterance exception to the hearsay rule. The statement was made contemporaneously with a startling event, i.e., within minutes of the officer’s hav[930]*930ing observed a burning vehicle and two men leaving the scene (see, Prince, Richardson on Evidence § 8-604 [Farrell 11th ed]; see also, People v Cotto, 92 NY2d 68, 78-79; People v Edwards, 47 NY2d 493, 497).

Contrary to defendant’s contention, the court properly refused to give an expanded identification charge. No witness identified defendant as the perpetrator of the arson; rather, defendant’s identity as the perpetrator was based upon circumstantial evidence. Thus, there was no issue concerning the evaluation of identification testimony and no basis for an expanded identification charge (see, People v Figueroa, 172 AD2d 387, lv denied 78 NY2d 922). The conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). (Appeal from Judgment of Monroe County Court, Marks, J. — Arson, 3rd Degree.) Present — Pigott, Jr., P. J., Wisner, Scudder, Burns and Gorski, JJ.

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—Judgment unanimously affirmed. Memorandum: County Court properly exercised its discretion in admitting a statement of an off-duty police officer pursuant to the excited utterance exception to the hearsay rule. The statement was made contemporaneously with a startling event, i.e., within minutes of the officer’s hav[930]*930ing observed a burning vehicle and two men leaving the scene (see, Prince, Richardson on Evidence § 8-604 [Farrell 11th ed]; see also, People v Cotto, 92 NY2d 68, 78-79; People v Edwards, 47 NY2d 493, 497).

Contrary to defendant’s contention, the court properly refused to give an expanded identification charge. No witness identified defendant as the perpetrator of the arson; rather, defendant’s identity as the perpetrator was based upon circumstantial evidence. Thus, there was no issue concerning the evaluation of identification testimony and no basis for an expanded identification charge (see, People v Figueroa, 172 AD2d 387, lv denied 78 NY2d 922). The conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). (Appeal from Judgment of Monroe County Court, Marks, J. — Arson, 3rd Degree.) Present — Pigott, Jr., P. J., Wisner, Scudder, Burns and Gorski, JJ.

People v. Shelter, 288 A.D.2d 929, 732 N.Y.S.2d 192, 2001 N.Y. App. Div. LEXIS 10716 (N.Y. Ct. App. 2001).

Pincite

288 A.D.2d 929 (People v. Shelter) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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