People v. Liccione

| NY | Jun 3, 1980

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of second degree murder relating to the killing of his wife. The most substantial issue raised on this appeal is whether certain statements made by the individual who fatally assaulted defendant’s wife, which were admitted as a part of the wife’s dying declarations, constituted inadmissible hearsay. The assailant’s statements, as communicated by the victim before she died, implicated defendant in a plot to kill his wife, and were received in evidence, on the theory that defendant and the assailant were coconspirators. Defendant now argues, inter alia, that the statements were not made in furtherance of the conspiracy and thus should not have been admitted under the coconspirator exception to the hearsay rule.

Whatever the merits of this contention, the issue is not preserved for review. For, although defendant specifically objected to the admissibility of the dying declaration qua dying declaration, and also specifically objected to the alleged failure of the prosecution to establish a prima facie case of conspiracy, no question was raised as to whether the assailant’s statements were made in furtherance of the conspiracy. These objections in this instance preserved only the grounds specified (see, generally, Richardson, Evidence [10th ed— Prince], § 538) and thus the precise issue argued is beyond our power of review.

The court has examined those of defendant’s remaining contentions which are reviewable and has found no reversible error.

. Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.