People v Carlos Soba

People v Soba 2003 NY Slip Op 18394 [1 AD3d 205] November 18, 2003 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

The People of the State of New York, Respondent,
v
Carlos Soba, Appellant.

— Judgment, Supreme Court, New York County (John Cataldo, J.), rendered January 3, 2001, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of eight years with five years postrelease supervision, unanimously affirmed.

The 911 tapes that defendant sought to introduce did not qualify for admission under the present sense impression exception to the hearsay rule and were of minimal probative value with relation to the issues raised at trial (see People v Brown, 80 NY2d 729 [1993]). In any event, were we to find that exclusion of any of the tapes was error, we would find the error to be harmless (see People v Crimmins, 36 NY2d 230 [1975]). Since defendant did not assert a constitutional right to introduce this evidence, his constitutional argument is unpreserved (see People v Angelo, 88 NY2d 217, 222 [1996]; People v Gonzalez, 54 NY2d 729 [1981]), and we decline to review it in the interest of justice. Were we to review this claim, we would find no violation of defendant's right to present a defense.

The victim's statement to the police, made minutes after the incident, was properly admitted as an excited utterance because the evidence, including testimony as to the victim's demeanor, established that he was still under the influence of the stress of the incident (see People v Alvarado, 294 AD2d 155 [2002], lv denied 98 NY2d 708 [2002]).

We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Sullivan, Rosenberger, Friedman and Gonzalez, JJ.