People v. Fermin

May 7, 1998
Versions:250 A.D.2d 389
673 N.Y.S.2d 84
1998 N.Y. App. Div. LEXIS 5332

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered November 29, 1995, convicting defendant, after a jury trial, of assault in the first degree and intimidating a witness in the third degree, and sentencing him, as a second felony offender, to consecutive terms of 71/2 to 15 years and 2 to 4 years, respectively, unanimously affirmed.

Since defendant made no objection, or made generalized objections, his claims that certain testimony by the detectives and paramedic constituted inadmissible hearsay have not been preserved for appellate review and we decline to review them in the interest of justice. Were we to review defendant’s claims, we would find that the challenged testimony was properly admitted either as excited utterances (see, People v Edwards, 47 NY2d 493, 497), or as explanatory narrative describing events leading to defendant’s arrest (see, People v Stansberry, 205 AD2d 317, lv denied 84 NY2d 910). In any event, even if the challenged testimony had been improperly admitted, any error would be harmless (People v Crimmins, 36 NY2d 230). There is no possibility that the verdict would have been different had the challenged statements been excluded given the overwhelming evidence of defendant’s guilt.

The court’s decision to include two questions it asked to a witness and the witness’s responses as part of the readback of testimony, concerning the whereabouts of defendant at the time of the shooting, was entirely proper and not overinclusive given the broad scope of the jury’s request and the circumstance *390that the questions and responses were highly relevant to the issue.

We have considered defendant’s remaining contentions and find them to be without merit. Concur — Sullivan, J. P., Ellerin, Nardelli, Rubin and Mazzarelli, JJ.