Opinion
March 30, 1998
Appeal from the Supreme Court, Queens County (Flug, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was not legally sufficient to support his conviction is unpreserved for appellate review ( see, CPL 470.05; People v. Bynum, 70 N.Y.2d 858, 859). In any event, viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, 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 defendant correctly contends, and the People concede, that an audio tape recording of a phone call made by the complainant to the police emergency phone number was inadmissible under the present sense impression exception to the rule against hearsay. However, the People's contention that the tape was admissible under the "excited utterance" exception to the rule against hearsay and to rebut the defendant's claim of recent fabrication was properly preserved for appellate review, as these theories were presented before the trial court ( see, People v. Nieves, 67 N.Y.2d 125, 135-136; People v. Johnson, 64 N.Y.2d 617, 629; People v. Dodt, 61 N.Y.2d 408, 416). Here, the content of the phone call was admissible as an excited utterance ( see, People v. Masas, 244 A.D.2d 433; People v. Dingle, 245 A.D.2d 386; People v. Rawlings, 220 A.D.2d 541) and was also admissible to rebut the defendant's claim of recent fabrication ( see, People v. Buie, 86 N.Y.2d 501, 510, citing People v. McDaniel, 81 N.Y.2d 10, 16; People v. Brooks, 222 A.D.2d 600, 601).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
Joy, J. P., Krausman, Florio and Luciano, JJ., concur.