Opinion
Argued May 29, 1979
Decided July 3, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, NICHOLAS TSOUCALAS, J.
Erica Horwitz and William E. Hellerstein for appellant.
Eugene Gold, District Attorney (Barbara L. Linzer of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The witness was permitted to testify, over objection, that after observing the defendant, his companion and the victim walk past him and engage in a scuffle, he heard a popping noise. The witness further testified that as he approached the victim he heard him say, "I just been shot." "They was trying to rob me." The witness asked "Who?" and the decedent related "Two Spanish guys."
We find no error in the introduction of the decedent's statements to the witness as a spontaneous declaration or excited utterance (People v Caviness, 38 N.Y.2d 227, 230-231; People v Del Vermo, 192 N.Y. 470). The circumstances surrounding the declaration sprang instinctively from the stress and excitement caused by the shooting and followed so closely after that event as to preclude the opportunity for deliberation, fabrication or design (see People v Marks, 6 N.Y.2d 67, cert den 362 U.S. 912). The simple fact that the decedent's identification of his attackers was prompted by the inquiry of the witness does not detract from the spontaneity of the utterance under the circumstances presented here (see People v Edwards, 47 N.Y.2d 493).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.