People v. Graham
| Decision Date | 12 May 1986 |
| Citation | 120 A.D.2d 611,502 N.Y.S.2d 83 |
| Parties | The PEOPLE, etc., Respondent, v. Melvin GRAHAM, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael E. Lipson, Garden City, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Brian D. Foley and Richard J. Cutler, of counsel), for respondent.
Before LAZER, J.P., and BRACKEN, BROWN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bourgeois, J.), rendered January 10, 1983, convicting him of murder in the second degree and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of the defendant's motion for a severance.
Judgment affirmed.
The defendant's convictions for felony murder and robbery in the first degree stem from his participation in the shooting death and robbery of one Ronald Sanders during the early morning hours of December 19, 1981, at the Utica Avenue "A" train subway station in Brooklyn. The defendant initially claims that the trial court erred in permitting token booth clerk Claude Watson, an eyewitness to the incident, to testify that shortly before the shooting the decedent had approached his booth and pleaded . The trial court properly admitted that statement as an excited utterance. In determining whether a declaration may qualify as an excited utterance, "the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection" (People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229; see, People v. Grant, 113 A.D.2d 311, 497 N.Y.S.2d 23). In the instant case, the record reveals that the defendant confronted the decedent on the street and fired three bullets at him as he fled down the stairs of the subway station. The challenged declaration was made only seconds thereafter. The traumatic and startling nature of the event and its nearness in time to the statement clearly render the decedent's remark inherently trustworthy and therefore admissible (see, People v. Edwards, supra; People v. Eastman, 114 A.D.2d 509, 494 N.Y.S.2d 418; Matter of Lydia K., 112 A.D.2d 306, 491 N.Y.S.2d 752, affd. 67 N.Y.2d 681, 499 N.Y.S.2d 684, 490 N.E.2d 551).
We further reject the defendant's contention that his pretrial motion for a severance was erroneously denied. Both he and his codefendant gave numerous oral and videotaped confessions to the authorities after their arrests. These...
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People v. Graham
...it was "unlikely that any prejudice to this defendant resulted from the admission of his codefendant's confession." ( People v. Graham, 120 A.D.2d 611, 502 N.Y.S.2d 83). Leave to appeal to the Court of Appeals was subsequently denied. (68 N.Y.2d 812, 507 N.Y.S.2d 1030, 499 N.E.2d Under C.P.......
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Graham v. Hoke, 1670
...unlikely that any prejudice to this defendant resulted from the admission of his codefendant's confession." People v. Graham, 120 A.D.2d 611, 611, 502 N.Y.S.2d 83, 84 (2d Dep't 1986) (citations omitted). On September 12, 1986 leave to appeal to the New York Court of Appeals was denied. 68 N......
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Graham v. Hoke
...of his codefendant's confession," citing People v. Cruz, 66 N.Y.2d 61, 495 N.Y.S.2d 14, 485 N.E.2d 221 (1985). People v. Graham, 120 A.D.2d 611, 502 N.Y.S.2d 83 (2 Dept.1986). On September 12, 1986 the New York Court of Appeals denied petitioner's application for leave to appeal. 68 N.Y.2d ......
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People v. Graham
...and robbery in the first degree. By decision and order of this court dated May 12, 1986, the judgment was affirmed ( People v. Graham, 120 A.D.2d 611, 502 N.Y.S.2d 83). ORDERED that the order is At his trial, the defendant's confession, which was both oral and videotaped, was detailed and c......