People v. Wimms

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered July 23, 1998, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The court correctly refused to permit the defendant’s mother to testify to the confessions the defendant’s brother made to her. The defense counsel failed to demonstrate that the [421] defendant’s brother was unavailable (see, e.g., People v Anderson, 153 AD2d 893). Moreover, there was insufficient evidence to assure the trustworthiness and reliability of the brother’s out-of-court statements (see, e.g., People v Shortridge, 65 NY2d 309). Therefore, the confessions do not qualify as declarations against penal interest, and are inadmissible hearsay (see, People v Settles, 46 NY2d 154). The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Santucci, J. P., McGinity, Luciano and Schmidt, JJ., concur.