Opinion
September 18, 1990
Appeal from the Supreme Court, New York County (Alfred H. Kleiman, J.).
Defendant was found guilty of arson for setting fire to the brownstone where he and his family resided on the first two floors. At trial, the court properly determined that the extra-judicial statement made by defendant's son Antonio to the police that, "My father started [a] fire in my house — this way — help", although hearsay, was admissible under the "excited utterance" exception to the hearsay rule. Although Antonio's trial testimony conflicted with the testimony he gave before the Grand Jury, under either set of facts, it appears that Antonio had an opportunity to observe defendant's actions inside the house, and had seen smoke coming from the windows of his home. Police officers testified that when he made the statement, Antonio appeared "very shaken" and that he was crying. The statement related to a startling event and was made while Antonio was still under the stress and excitement caused by the event. (See, People v. Edwards, 47 N.Y.2d 493; People v. Nieves, 67 N.Y.2d 125. )
Further, we reject defendant's contention that the trial court improperly delegated to the jury its authority to determine ab initio whether the statement constituted an excited utterance. The trial court's references to the jury's function in evaluating the question of whether Antonio's statement was an excited utterance related to issues of credibility, which properly fall within the province of the jury.
We are satisfied that the stick wielded by defendant at the time of his arrest, which was a part of a broken chair, constituted a dangerous instrument as that term is defined in Penal Law § 10.00 (13).
Concur — Kupferman, J.P., Sullivan, Milonas, Ellerin and Smith, JJ.