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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TYRONE SIMMONS, Defendant-Appellant.

The court properly instructed the jury to disregard hearsay testimony concerning an unavailable purported eyewitness's inability to identify defendant. Defendant failed to preserve his present claim that this evidence was admissible, notwithstanding the hearsay rule, as a matter of constitutional law (see, Chambers v. Mississippi, 410 U.S. 284), and we decline to review it in the interest of justice. Were we to review this claim, we would find that there was no showing that the hearsay negative identification evidence was reliable (see, People v. Benjamin, 272 A.D.2d 276, lv denied 95 N.Y.2d 904). Defendant has not established that he was prejudiced in any manner by the fact that the court initially received this evidence and subsequently instructed the jury to disregard it.

As the People concede, the determinate terms for the assault and reckless endangerment convictions were improperly imposed, since only indeterminate sentences were available under the statutory scheme at the relevant time. Furthermore, the sentencing court appears to have misunderstood the statutory sentencing range that was available when it imposed sentence for the weapon conviction. Accordingly, we modify to the extent of remanding the matter for resentencing.

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

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PEOPLE v. SIMMONS
(May 22, 2001)