People v Scott C. Eves

People v Eves 2006 NY Slip Op 03373 [28 AD3d 1231] April 28, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

The People of the State of New York, Respondent, v Scott C. Eves, Appellant.

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Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered January 12, 2004. The judgment convicted defendant, upon a jury verdict, of criminal mischief in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him of criminal mischief in the third degree (Penal Law § 145.05 [2]). Contrary to defendant's contention, County Court properly admitted a bystander's statement in evidence under the present sense impression exception to the hearsay rule (see generally People v Buie, 86 NY2d 501, 505-509 [1995]; People v Dann, 17 AD3d 1152 [2005], lv denied 5 NY3d 761 [2005]; People v Ortiz, 1 AD3d 1017, 1018 [2003], lv denied 1 NY3d 632 [2004]). "There was sufficient corroboration, by means of independent proof, of both the contemporaneity and reliability of the out-of-court declaration" (Ortiz, 1 AD3d at 1018; see generally People v Vasquez, 88 NY2d 561, 574-575 [1996]; People v Brown, 80 NY2d 729, 734-736 [1993]). Also contrary to defendant's contention, the sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Scudder, Kehoe, Pine and Hayes, JJ.