People v. Presler ( 1987 )

— Judgment affirmed. Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of driving while intoxicated, as a felony, and related traffic offenses. It was not error for the trial court to deny admission of a statement by a person present in the car which may have indicated that he, rather than the defendant, was the driver of the vehicle. The statement was hearsay and did not fit within any of the recognized exceptions to the hearsay rule. The statement was not against the declarant’s penal interest, as the dissent suggests, because there does not exist sufficient proof independent of the declaration to insure its reliability (see, People v Shortridge, 65 NY2d 309, 312-313). The fact that a similar statement was admitted during a prior trial of the defendant did not bind the trial court here to make the same ruling (see, People v Nieves, 67 NY2d 125, 136). In any event, even if the court’s ruling was error, it was harmless given the overwhelming evidence of defendant’s guilt based upon a police officer’s identification of the defendant as the driver of the vehicle. The officer observed the car without headlights during an extended high-speed chase in which the officer was able to drive his car within one car length of the defendant’s vehicle. Moreover, the officer observed boot prints coming from the driver’s side of the defendant’s vehicle and sneaker prints coming from the passenger side and the officer testified that defendant wore work boots when he was arrested. We have considered the remaining claims raised by the defendant and find them lacking in merit.

All concur, except Callahan, J. P., and Pine, J., who dissent and vote to reverse and grant a new trial, in the following memorandum.