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People v. Brown

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 6, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROBERT BROWN, DEFENDANT-APPELLANT.

Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered October 26, 2006, convicting defendant, after a jury trial, of assault in the second degree (two counts) and assault in the third degree, and sentencing him to an aggregate term of 7 years, unanimously affirmed. Judgment, same court and Justice, rendered November 9, 2006, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a concurrent term of 5 years, unanimously modified, on the law, to the extent of vacating the term of postrelease supervision and remanding for the sole purpose of imposing a lawful term thereof, and otherwise affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Sweeny, DeGrasse, Richter, Manzanet-Daniels, JJ.

3186/04, 52587C/05

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility.

The court properly permitted the People to introduce a tape of a 911 call made by an unidentified declarant. The content of the call establishes that it qualified under both the excited utterance (see People v Edwards, 47 NY2d 493, 497 [1979]) and present sense impression (see People v Brown, 80 NY2d 729 [1993]) exceptions to the hearsay rule, and that it was not testimonial within the meaning of Crawford v Washington (541 US 36 [2004]) in that it was made "to enable police assistance to meet an ongoing emergency" (Davis v Washington, 547 US 813, 822 [2006]).

As the People concede, since defendant was a first felony offender for sentencing purposes, the five-year term of postrelease supervision imposed for his conviction by guilty plea was unlawful, and the correct term of PRS should be between one and one-half and three years. We perceive no other basis for reducing any of the sentences.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100406

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