People v Monroe

People v Monroe 2007 NY Slip Op 03526 [39 AD3d 1279] April 20, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

The People of the State of New York, Respondent, v Tyrone Monroe, Appellant. (Appeal No. 2.)

—[*1] Edward J. Nowak, Public Defender, Rochester (Eric Dolan of counsel), for defendant-appellant.

Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), for respondent.

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered May 21, 2004. The judgment convicted defendant, upon a jury verdict, of assault in the first degree and criminal possession of a weapon in the second degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of assault in the first degree (Penal Law § 120.10 [1]) and two counts of criminal possession of a weapon in the second degree (former § 265.03 [2]). We reject defendant's contention that County Court erred in allowing in evidence a statement made by the victim to a police officer. Upon responding to the scene, the officer found the victim bleeding from a gunshot wound, and it appeared that the victim was going into shock. The victim was taken to the hospital, where he told the officer that he had been shot by "T." Although the victim was coherent when he made the statement, he was in substantial pain. We conclude that the court properly admitted the testimony of the victim as an excited utterance because the victim was not capable of studied reflection, and the statement therefore had the necessary indicia of reliability (see People v Cotto, 92 NY2d 68, 78-79 [1998]; see generally People v Johnson, 1 NY3d 302, 305-307 [2003]). In any event, any error in the admission of the statement is harmless in light of the fact that there was no evidence that "T" was defendant, the victim testified that defendant shot him, and defendant admitted in his testimony that he shot the victim (see People v Fermin, 250 AD2d 389 [1998], lv denied 92 NY2d 851 [1998], cert denied 525 US 1111 [1999]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). We have considered defendant's remaining contention and conclude that it is without merit. Present—Martoche, J.P., Smith, Centra, Lunn and Peradotto, JJ.