People v. Jordan

• Decision Date: 14 December 1987
• Citation: 522 N.Y.S.2d 576,135 A.D.2d 652
• Parties: The PEOPLE, etc., Respondent, v. Edward JORDAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 576

522 N.Y.S.2d 576

135 A.D.2d 652

The PEOPLE, etc., Respondent, v. Edward JORDAN, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 14, 1987.

Michael M. Premisler, Carle Place, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Mark D. Cohen, of counsel), for respondent.

Before MOLLEN, P.J., and LAWRENCE, KUNZEMAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Seidell, J), rendered January 24, 1983, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by the victim before his death.

ORDERED that the judgment is affirmed.

The statements made by the victim prior to his death were properly admitted into evidence at trial as dying declarations, as the evidence adduced at the hearing established that the victim was in extremis at the time they were made and that the statements were made under and resulted from a present sense of impending death (see, People v. Allen, 300 N.Y. 222, 90 N.E.2d 48; People v. Liccione, 63 A.D.2d 305, 407 N.Y.S.2d 753, affd. 50 N.Y.2d 850, 430 N.Y.S.2d 36, 407 N.E.2d 1333, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 779).

After reviewing the evidence adduced at trial in the light most favorable to the prosecution, we find that it was legally sufficient to support the conviction as a rational trier of fact could have found that the defendant committed the crime of murder in the second degree beyond a reasonable doubt (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932). Moreover, upon the exercise of our factual review power we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15[5] ).

The trial court did not err in permitting Officers Ubert and Cronin to testify that the defendant responded to the phrase "Hey, Fat Man", since this testimony did not constitute hearsay, and although it may have implied that the defendant had prior involvements with the law, the testimony was probative on the issue of identity (see, People v. Robinson, 68 N.Y.2d 541, 510 N.Y.S.2d 837, 503 N.E.2d 485; People v. Beam, 57 N.Y.2d 241, 455 N.Y.S.2d 575, 441 N.E.2d 1093). Furthermore, defense counsel's...