Opinion
November 13, 1998
Appeal from the Supreme Court, Monroe County, Wisner, J. — Robbery, 1st Degree.
Present — Pine, J. P., Hayes, Callahan, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted following a jury trial of robbery in the first degree (Penal Law § 160.15) for striking an elderly man with a blunt "instrument and stealing his wallet. The evidence is legally sufficient to support the conviction ( see, People v. Bleakly, 69 N.Y.2d 490, 495; People v. Haynes, 137 A.D.2d 833, lv denied 72 N.Y.2d 861), and the verdict is not against the weight of the evidence ( see, People v. Bleakley, supra, at 495).
There is no merit to the contention of defendant that Supreme Court committed numerous errors that deprived him of his right to a fair trial. The court did not err in admitting the victim's statements to a police officer under the excited utterance exception to the hearsay rule ( see, People v. Cotto, 92 N.Y.2d 68, 78-79; People v. Brown, 70 N.Y.2d 513, 517-519). The record establishes that the victim made the statements within 20 minutes of the assault, while he was still at the scene being tended to by medical personnel and was still under the stress of the starting event. Thus, the circumstances reasonably justified the conclusion that the remarks were not made "under the impetus of studied reflection" ( People v. Edwards, 47 N.Y.2d 493, 497).
From our review of the record, we conclude that defendant did not establish a Brady violation by the prosecutor. The court's Sandoval ruling did not constitute an abuse of discretion ( see, People v. Walker, 83 N.Y.2d 455, 458-459; People v. Richardson, 239 A.D.2d 874, lv denied 90 N.Y.2d 897), nor did the court abuse its discretion in denying defendant's motion for a mistrial ( see, People v. Ortiz, 54 N.Y.2d 288, 292).
Defendant's contentions that the court's charge on accomplice liability was erroneous and that the court's Allen charge ( see, Allen v. United States, 164 U.S. 492) was coercive are unpreserved for our review ( see, CPL 470.05), and we decline to exercise our power to address them as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).
The contention of defendant that the verdict convicting him of robbery in the first degree and acquitting him of felony murder is inconsistent or repugnant is not preserved for our review because he failed to raise that contention before the jury was discharged ( see, People v. Alfaro, 66 N.Y.2d 985; People v. Satloff, 56 N.Y.2d 745, 746, rearg denied 57 N.Y.2d 674; People v. Paz, 159 A.D.2d 987, 988, lv denied 76 N.Y.2d 793, 77 N.Y.2d 842). In any event, there is no merit to defendant's contention.
We have examined defendant's remaining contentions and conclude that they lack merit.