People v Herndon

People v Herndon 2007 NY Slip Op 04715 [41 AD3d 130] Decided on June 5, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 5, 2007
Mazzarelli, J.P., Saxe, Sullivan, McGuire, Kavanagh, JJ.
913
Ind. 4721/03

[*1]The People of the State of New York, Respondent,

v

Damonel Herndon, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (David Crow
of counsel), and Milbank, Tweed, Hadley & McCloy LLP,
New York (Carolyn C. Wu of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Andrew S.
Holland of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered September 7, 2004, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

Just after being violently assaulted by defendant with the sharp edge of a bottle, the victim went upstairs to his apartment, in a highly agitated state, bleeding profusely from a deep laceration in his shoulder. He was described by his wife, who had difficulty extracting "two words" from him due to his agitated state, as "very hysterical," crying and confused. The victim told his wife that he had gotten stabbed and almost robbed, then ran out the door before his wife could respond. The victim's statement was clearly the product of excitement sufficient to still his reflective faculties, and it qualified as an excited utterance. The victim's wife immediately placed a 911 call, the contents of which demonstrate that she, too, was operating under the stress of a startling event. Furthermore, both the victim and his wife testified at trial and defense counsel had unfettered cross-examination of both witnesses, providing an added assurance of reliability (see People v Buie, 86 NY2d 501, 512-513 [1995]). Were we to find any error in the admission in evidence of the recording of the 911 call, in which the victim's wife repeated the statement made by her husband, we would find that error to be harmless.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 5, 2007

CLERK