Opinion
October 2, 1998
Appeal from the Supreme Court, Erie County, Cosgrove, J. — Robbery, 1st Degree.
Present — Denman, P. J., Pine, Hayes, Pigott, Jr., and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of robbery in the first degree (Penal Law § 160.15), burglary in the first degree (Penal Law § 140.30), petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Contrary to defendant's contention, Supreme Court did not err in admitting into evidence the 911 tape of the victims telephone call, made within minutes of the robbery. The tape was admissible as an excited utterance ( see, People v. O'Connor, 242 A.D.2d 908, lv denied 91 N.Y.2d 895); the victim's statements therein "were not made under the impetus of studied reflection" ( People v. Edwards, 47 N.Y.2d 493, 497). The People were properly permitted to present testimony regarding defendant's prior possession of a handgun resembling that described by the victim. The "identity of the perpetrator was at issue, and * * * the probative value of that testimony outweighed the prejudice to defendant" ( People v. Bogoniewski, 206 A.D.2d 844, 845, lv denied 84 N.Y.2d 933). Nor was defendant denied effective assistance of counsel. The evidence, the law and the circumstances of the case establish that defendant received meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 147).