People v. Perry

Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered December 19, 1994, convicting defendant, after a jury trial, of attempted robbery in the first degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.

The court’s refusal to instruct the jury on how to treat evidence of flight was proper in view of the proof adduced. The court properly declined to give a "two-inference” charge that had the potential for confusing the jury as to the burden of proof. Defendant not having testified, the court also properly excluded evidence that defendant said to his pursuers, "Why are you chasing me?” Were we to review defendant’s unpreserved argument that this was admissible for its relevance to defendant’s state of mind, we would find that defendant’s alleged "question” to his pursuers was essentially a factual assertion of innocence, inadmissible as hearsay (see, People v Reynoso, 73 NY2d 816, 819). Concur—Murphy, P. J., Sullivan, Wallach, Kupferman and Ross, JJ.