People v. Fratello

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered April 25, 1996, convicting defendant, after a nonjury trial, of attempted murder in the second degree, assault in the first degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 10 to 20 years and 3 to 6 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The court had ample basis upon which to credit the victim’s inculpation of defendant in the form of an excited utterance at the scene, while discrediting the victim’s highly suspect and thoroughly impeached efforts, as a defense witness, to exculpate defendant. Likewise, the court properly rejected defendant’s purported alibi.

The victim’s excited utterance, made under the stress of nervous excitement resulting from his wounds, was properly admitted. The declarant was a participant in the events, clearly speaking from his personal observations (see, People v Caviness, 38 NY2d 227, 231).

The court properly exercised its discretion when it declined defendant’s request to present certain expert testimony, since the evaluation of the victim’s ability to identify his assailant in the circumstances of this case did not require any specialized knowledge beyond the ken of the trier of fact (see, People v Cronin, 60 NY2d 430), which, in this nonjury trial, was the court itself.

We perceive no abuse of discretion in sentencing.

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Milonas, J. P., Rubin, Mazzarelli and Andrias, JJ.