Opinion
October 15, 1992
Appeal from the Supreme Court, New York County (Richard Failla, J.).
Defendant and two co-defendants robbed the passenger and driver of a parked taxicab. Nearby plainclothes officers, observing the altercation, apprehended the perpetrators, one of whom tossed away the toy gun which was used in the robbery. As the police passed the scene of the incident, they heard the driver exclaim, "Help, they robbed me. They have a gun." The court permitted introduction of this statement as an excited utterance. Considering that the declarant had just been robbed (People v Rowley, 160 A.D.2d 963, lv dismissed 76 N.Y.2d 896, lv denied 78 N.Y.2d 926; People v Hardy, 136 A.D.2d 915, lv denied 71 N.Y.2d 969), which was a startling event (see, People v Caviness, 38 N.Y.2d 227, 230) and the short lapse of time between the robbery, apprehension and the declaration (see, People v Edwards, 47 N.Y.2d 493, 497; People v Brown, 70 N.Y.2d 513, 519), we find no basis to disturb the hearing court's sound exercise of discretion. Nor do we find that the court failed to respond meaningfully to the jury note (see, People v Malloy, 55 N.Y.2d 296, 301-302, cert denied 459 U.S. 847) or that the supplemental instruction, which tracked the statutory definition of the relevant charge of robbery, was erroneous.
Concur — Carro, J.P., Milonas, Rosenberger and Asch, JJ.