Opinion
No. 1578.
October 2, 2007.
Judgments, Supreme Court, New York County (Carol Berkman, J.), rendered May 19, 2005, convicting defendant, after a jury trial, of attempted rape in the first degree, aggravated sexual abuse in the second degree, sexual abuse in the first degree and bail jumping in the second degree, and sentencing him to concurrent terms of 7 years, consecutive to a term of 11/3 to 4 years, unanimously affirmed.
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), and Heller Ehrman LLP, New York (Brian D. Murphy of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), for respondent.
Before: Lippman, P.J., Tom, Nardelli, Gonzalez and Kavanagh, JJ.
The victim's statements to her daughter and to a 911 operator, made shortly after the incident, were properly admitted as excited utterances because the evidence, including testimony as to the victim's demeanor, established that she was still under the influence of the stress of the attack upon her ( see People v Johnson, 1 NY3d 302). Defendant's remaining arguments regarding these statements are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility ( see People v Bleakley, 69 NY2d 490, 495). The evidence, which included defendant's own statement to the police, clearly established that he intended to rape the victim and came dangerously close to doing so.
We perceive no basis for reducing the sentence.