Opinion
May 22, 1995
Appeal from the Supreme Court, Queens County (Thomas, J.).
Ordered that the judgment is affirmed.
The evidence adduced at trial establishes that, on the morning of May 3, 1992, the defendant accosted the then-10-year-old complainant in the lobby of the complainant's apartment building. The defendant forced the complainant to go to the roof of the building where the defendant sodomized him. Immediately following the incident, the complainant returned to his apartment and reported the incident to his aunt, who telephoned 911.
When the aunt was unavailable to testify at trial regarding the contents of her telephone call, the trial court precluded the defendant from introducing into evidence a transcription of her telephone call under the present-sense exception to the hearsay rule. The court's ruling was proper since the aunt was not an eyewitness to the sodomy (cf., People v Brown, 80 N.Y.2d 729; People v Jardin, 154 Misc.2d 172).
Viewing the evidence adduced at trial in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it is legally sufficient to establish the defendant's guilt of assault in the second degree (Penal Law § 120.05; § 10.00 [13]; see generally, People v Carter, 53 N.Y.2d 113).
The defendant's claims of prosecutorial misconduct are without merit (see generally, People v Arce, 42 N.Y.2d 179; People v Galloway, 54 N.Y.2d 396).
The defendant's sentence is neither harsh nor excessive (see, People v Delgado, 80 N.Y.2d 780; People v Suitte, 90 A.D.2d 80). Sullivan, J.P., Copertino, Goldstein and Florio, JJ., concur.