criminal background and testified pursuant to a cooperation agreement, these facts raised an issue of credibility which the jury resolved in favor of the prosecution (see, People v. Alston, 243 A.D.2d 573; People v. McDaniel, 233 A.D.2d 343; People v. Dennis, 223 A.D.2d 599; People v. Taylor, 177 A.D.2d 727). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15). The trial court did not err in admitting the victim's statements to the responding police officers on the basis that the statements constituted excited utterances (see, People v. Vasquez, 88 N.Y.2d 561; People v. Brown, 70 N.Y.2d 513). The circumstances under which the victim made the statements, identifying the defendant as the shooter, "reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection" (People v. Edwards, 47 N.Y.2d 493, 497; see also, People v. Durio, 175 A.D.2d 842, 844; People v. Moore, 173 A.D.2d 568). The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or do not require reversal.
The statements were made within minutes of the victim having been shot five times while standing on a street corner and while he was bleeding to death. The circumstances surrounding the making of the statements reasonably justified the court's conclusion that they were not made under the impetus of studied reflection and that they were, therefore, admissible under the excited-utterance exception to the hearsay rule (see, People v Brown, 70 N.Y.2d 513, 517-519; People v Garcia, 189 A.D.2d 587; People v Moore, 173 A.D.2d 568). The defendant's remaining contentions are either unpreserved for appellate review or without merit.
We have examined the defendant's contentions, which include, inter alia, attacks on the prosecutor's summation and the court's charge. These contentions are largely unpreserved for appellate review (see, CPL 470.05), and in any event, are either without merit (see, People v Paige, 154 A.D.2d 318; People v Moore, 173 A.D.2d 568; People v Ashwal, 39 N.Y.2d 105), or involve errors which were harmless in light of the overwhelming evidence of the defendant's guilt (see, People v Crimmins, 36 N.Y.2d 230). Mangano, P.J., Harwood, Miller and Santucci, JJ., concur.
That same officer, who was instructed to remain with the victim at the hospital after their arrival at 11:05 A.M. because of the substantial possibility that he would die, thereby necessitating certain identification procedures, stated that up until the time he made the statement decedent remained "dazed" and was clearly in substantial pain from bruises, abrasions and the deep furrows cut into his wrists by the ropes. Once he arrived at the hospital, he was subjected to emergency treatment, which was still going on when he was initially interviewed by Lutterloh, whose questioning was intermingled with and interrupted by attempts by the doctors and nurses present to communicate with decedent (People v. Moore, 173 A.D.2d 568, lv denied 78 N.Y.2d 970). Moreover, because the voice box he was using was not working properly, all of his communications at this point were subjected to the additional stress and frustration of attempting to make himself understood in the face of seemingly insuperable obstacles. These circumstances compel the conclusion that he remained incapable of studied refection between the time when he regained consciousness and the time he made the statement (see, People v. Brown, supra; McCormick, Evidence ยง 297, at 856 [3d ed] ["that the declarant still appeared `nervous' or `distraught' and (under) continuing emotional upset will often suffice"]).
The decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection. People v. Moore, 173 AD2d 568 (2nd Dept. 1991). A declaration against interest is admissible even where the declarant is a non-party but is unavailable to testify.