Opinion
October 28, 1985
Appeal from the Supreme Court, Kings County (Bernstein, J.).
Judgment affirmed.
We have reviewed the record of the Huntley hearing and conclude that the evidence supports the suppression court's determination that defendant's confession was voluntarily made (see, People v Gee, 104 A.D.2d 561, lv denied 64 N.Y.2d 759; People v Armstead, 98 A.D.2d 726). Although defendant, who had been shot and wounded during the crime, had undergone surgery earlier in the day, he was nevertheless coherent, alert and fully aware of what he was doing when, at his request, and with the approval of hospital personnel, he spoke to a detective and a prosecutor in his hospital room and, upon receiving his Miranda warnings and waiving his rights, made a detailed confession to the crime (see, People v Pearson, 106 A.D.2d 588).
In addition, defendant's motion to sever his case from that of his codefendant was properly denied, inasmuch as defendant's own confession was more detailed and inculpatory than that of his codefendant, and the latter added nothing to the former. Thus, the probability of prejudice accruing to defendant was negligible (see, People v Berzups, 49 N.Y.2d 417, 425).
Finally, the trial court properly permitted a police officer to testify as to a statement made by the dying victim, as he lay on the street minutes after having been shot, to the effect that he had been robbed and that he might have shot one of his assailants. The circumstances surrounding the victim's declaration reasonably justified the conclusion that it had been uttered while the victim remained under the influence of a startling event, i.e., the shooting and resulting injury, and not after a period of reflection or deliberation which might have led him to be untruthful. Thus, the statement was admissible as a spontaneous declaration or excited utterance (People v Edwards, 47 N.Y.2d 493, 496-497; see also, People v O'Neall, 47 N.Y.2d 952; People v Caviness, 38 N.Y.2d 227, 230-231), even though made in response to an innocuous question of a police officer coming to the victim's aid (see, People v Edwards, supra, at pp 495, 498-499).
We have considered such other of defendant's contentions as have been preserved for appellate review and find them to be lacking in merit. Mollen, P.J., Bracken, Niehoff and Rubin, JJ., concur.