People v. Kolb

• Decision Date: 03 March 1986
• Citation: 118 A.D.2d 591,499 N.Y.S.2d 887
• Parties: The PEOPLE, etc., Respondent, v. Michael KOLB, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 887

499 N.Y.S.2d 887

118 A.D.2d 591

The PEOPLE, etc., Respondent, v. Michael KOLB, Appellant.

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

March 3, 1986

John F. Middlemiss, Jr., Ronkonkoma (Louise Perrotta, of counsel), for appellant. Patrick Henry, Dist. Atty., Riverhead (John J. Ribeiro, Hauppauge, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered April 10, 1984, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. As we held in the case of the defendant's brother (see, People v. Kolb, App.Div., 499 N.Y.S.2d 447 [decided herewith] ), the statements made by the victim shortly before his demise come within the dying declaration exception to the hearsay rule (see, generally, People v. Nieves, 108 A.D.2d 165, 488 N.Y.S.2d 654; People v. Coniglio, 79 Misc.2d 808, 361 N.Y.S.2d 524; cf. People v. Acomb, 87 A.D.2d 1, 450 N.Y.S.2d 632, appeal dismissed 56 N.Y.2d 1034, 453 N.Y.S.2d 1030, 439 N.E.2d 404). The defendant's remaining contentions have been reviewed to the extent that they were preserved for review as a matter of law, and are without merit. The sentence imposed was appropriate under the circumstances of this case.

MANGANO, J.P., and BROWN, WEINSTEIN and SPATT, JJ., concur.