Opinion
(IND. NO. 6942/97)
Submitted September 20, 2001.
October 9, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered July 10, 1998, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Andrew C. Fine, New York, N.Y. (Sara Bennett of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Susan D. Settenbrino of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, NANCY E. SMITH and BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The trial court properly admitted the statements made by the decedent naming the defendant as his assailant under the excited utterance exception to the hearsay rule (see, People v. Fratello, 92 N.Y.2d 565, cert denied 526 U.S. 1068; People v. Brown, 70 N.Y.2d 513, 522; People v. Edwards, 47 N.Y.2d 493). The surrounding circumstances reasonably justify the conclusion that the decedent's remarks were not made under the impetus of studied reflection and that the decedent was still under the continuing stress and excitement of the shooting (see, People v. Fratello, supra; People v. Cotto, 92 N.Y.2d 68; People v. Brown, supra; People v. Edwards, supra; People v. Johnson, 272 A.D.2d 555; People v. Evans, 183 A.D.2d 780).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).