PEOPLE & C., RESPONDENT, v. KENNETH MAHER, APPELLANT.
89 N.Y.2d 456, 677 N.E.2d 728, 654 N.Y.S.2d 1004 (1997).
February 11, 1997
2 No. 6 (1997 NY Int. 17)
Decided February 13, 1997
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Monroe A. Semble, for Appellant.
Steven A. Hovani, for Respondent.
LEVINE, J.:
Defendant Kenneth Maher was convicted of counts of intentional murder
and felony murder and criminal contempt in connection with the
shooting death of his estranged paramour. The principal issue on
appeal is whether hearsay statements of the victim concerning
defendant's prior violent acts and express or implied threats against
her, were admissible as evidence-in-chief in the People's case.
The People presented other evidence that the victim and defendant were
involved in an intimate relationship, living together in an apartment
until an argument occurred between them on April 20, 1990. After two
additional incidents on April 24 and 26, Ms. Kotel contacted the
police and vacated the apartment. Another altercation occurred on
April 30, leading to the filing of a criminal complaint against
defendant for menacing and unlawful imprisonment.
After midnight on June 3, 1990, defendant parked his car in a secluded
wooded area near Ms. Kotel's new apartment. Wearing black pants, a
black shirt, a black jacket and a black bandanna, and armed with a .12
gauge single-shot sawed-off shotgun, defendant waited outside Ms.
Kotel's apartment until a friend who was visiting left, at which time
defendant cut the telephone wires to the building and forcibly entered
her apartment by smashing in a door with a baseball bat. When Ms.
Kotel sought to flee to a neighbor's apartment, defendant pursued her
and forced her back into her own apartment, whereupon defendant shot
her three times, killing her. Defendant was arrested eleven hours
later.
The People proposed to introduce certain statements of the victim made
to the police and a hospital security officer concerning violent and
SNIPPETS:
Defendant Kenneth Maher was convicted of counts of intentional murder and felony murder and
The principal issue on appeal is whether hearsay statements of the victim concerning
The People presented other evidence that the victim and defendant were involved in an
The People proposed to introduce certain statements of the victim made to the police and a
At the Ventimiglia hearing (People v Ventimiglia, 52 NY2d 350) on the admissibility of this
The People's only ground for avoiding the hearsay objection was reliance upon the theory
In that statement she described his suddenly coming out of a hiding place in a closet,
The jury rejected both defenses, finding him guilty of intentional and felony murder, and of
The Appellate Division affirmed defendant's conviction ), upholding the admissibility of the
In our view, admitting the hearsay statements of the victim into evidence was an unwarranted
In Geraci, we recognized an exception to the defendant's constitutional right of
Application of the Geraci exception is even more anomalous where, as here, it is invoked
The evidence of defendant's conduct leading to the murder strongly negated his claim of
Moreover, the victim's rejection hardly fulfilled the objective element of the extreme
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