People v. Gutierrez

• Decision Date: 26 March 1998
• Citation: 248 A.D.2d 295,670 N.Y.S.2d 85
• Parties: 1998 N.Y. Slip Op. 2835 The PEOPLE of the State of New York, Respondent, v. Pedro GUTIERREZ, a/k/a Pedro Gutierez, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 85

670 N.Y.S.2d 85

1998 N.Y. Slip Op. 2835

The PEOPLE of the State of New York, Respondent, v. Pedro GUTIERREZ, a/k/a Pedro Gutierez, Defendant-Appellant.

Supreme Court of New York, Appellate Division, First Department.

March 26, 1998.

Jennifer Correale, for respondent.

Robert S. Dean, for defendant-appellant.

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered June 11, 1996, convicting defendant, after a jury trial, of murder in the second degree, attempted murder in the second degree, assault in the second degree, reckless endangerment in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to consecutive terms of 15 years to life, 7 1/2 to 15 years, and 3 1/2 to 7 years for the murder, attempted murder, and reckless endangerment convictions concurrent with concurrent terms of 3 1/2 to 7 years and 7 1/2 to 15 years for the remaining convictions, unanimously affirmed.

The 911 call by an anonymous caller three minutes after the shooting was sufficiently contemporaneous to qualify for admission under the present sense impression exception. In any event, any error in admission of this evidence was harmless in view of the overwhelming evidence of defendant's guilt (People v. Johnson, 213 A.D.2d 241, 624 N.Y.S.2d 123, lv. denied 86 N.Y.2d 782, 631 N.Y.S.2d 627, 655 N.E.2d 724).

The evidence of defendant's guilt of depraved indifference murder was legally sufficient "notwithstanding that the evidence would have also supported a finding of intentional murder" (People v. Arce, --- A.D.2d ----, 662 N.Y.S.2d 495). There was ample evidence supporting defendant's accessorial liability for depraved indifference murder, as charged by the court.

Since separate acts toward separate victims were involved, the court properly imposed consecutive sentences for the reckless endangerment and murder convictions (see, People v. Creekmore, 106 A.D.2d 260, 261, 482 N.Y.S.2d 278, lv. denied 65 N.Y.2d 978, 494 N.Y.S.2d 1046, 484 N.E.2d 676; see also, People v. Brathwaite, 63 N.Y.2d 839, 842-843, 482 N.Y.S.2d 253, 472 N.E.2d 29).

We have reviewed defendant's remaining contentions and find them to be without merit.

ELLERIN, J.P., and WALLACH, RUBIN, ANDRIAS and SAXE, JJ., concur.