Opinion
March 26, 1998
Appeal from the Supreme Court, Bronx County (Ira Globerman, J.).
The court properly denied, without a hearing, defendant's motion to set aside the verdict on the grounds of unreported juror bias, since the "moving papers do not contain sworn allegations * * * to support" (CPL 330.40 [e] [ii]) the contention that a juror had a relationship with one of the shooting victims that may have influenced his role as a juror. Defendant's claimed "web" of family relationships was remote and speculative.
The trial court properly admitted a 911 tape into evidence under a theory of present sense impression, since the tape, which described parts of a continuously unfolding chain of events ( see, People v. Vasquez, 88 N.Y.2d 561, 574), was a "spontaneous description * * * of events made substantially contemporaneously with the observations * * * [that was] sufficiently corroborated by other evidence" ( People v. Brown, 80 N.Y.2d 729, 734). Moreover, the tape was admissible as an excited utterance ( People v. Cook, 220 A.D.2d 522, 523, lv denied 87 N.Y.2d 899).
The court properly allowed the prosecution to use Grand Jury testimony to impeach two of its witnesses, since their trial testimony affirmatively damaged the People's case (CPL 60.36 [1]; People v. Fitzpatrick, 40 N.Y.2d 44, 51). One witness undermined the People's identification evidence by testifying that defendant did not resemble the assailant, and the other witness contradicted evidence introduced by the People to refute the defense of justification.
We perceive no abuse of sentencing discretion.
We have reviewed defendant's remaining arguments and find them to be without merit.
Concur — Ellerin, J. P., Wallach, Rubin, Andrias and Saxe, JJ.