Opinion
June 11, 1998
Appeal from the Supreme Court, New York County (Frederic Berman, J.).
A witness's screamed intention to "get" the perpetrators was not offered for its truth and thus was not hearsay. In any event, this statement was properly received as an excited utterance, since it was clearly made under the stress of excitement caused by the crime (see, People v. Cannon, 228 A.D.2d 513, 514).
The court properly exercised its discretion by refusing to declare a mistrial based on the jury's purported deadlock (see, Matter of Plummer v. Rothwax, 63 N.Y.2d 243; People v. Samper, 239 A.D.2d 191, lv denied 90 N.Y.2d 910). Defendant failed to preserve his remaining claims concerning the court's communications with the deliberating jury, each of which requires preservation (see, People v. Starling, 85 N.Y.2d 509, 516), and we decline to review them in the interest of justice. Were we to review them, we would find them to be without merit.
The court's ruling permitting the People's cross-examination of defendant as to prior bad acts was a proper exercise of discretion since these acts were highly probative of credibility and the People established a good faith basis for such questioning (see, People v. Gray, 84 N.Y.2d 709, 712; People v. Kass, 25 N.Y.2d 123, 125-126).
Concur — Milonas, J. P., Ellerin, Williams, Tom and Mazzarelli, JJ.