People v Mcleod (Trevor)

[*1] People v Mcleod (Trevor) 2007 NY Slip Op 50595(U) [15 Misc 3d 128(A)] Decided on March 21, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2004-1573 K CR.

The People of the State of New York, Respondent,

against

Trevor Mcleod, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Miriam Cyrulnik, J.), rendered October 19, 2004. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree, menacing in the third degree and harassment in the second degree.

Judgment of conviction affirmed.

Defendant was convicted of attempted assault in the third degree (Penal Law §§ 110.00, 120.00), menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26) after a nonjury trial at which the alleged victim, his wife, did not testify. Admitted into evidence over objections were a tape recording of two 911 calls purportedly made by the victim, police testimony regarding statements
made by her upon their arrival at the scene and a hospital record prepared after the wife had been subsequently brought there by ambulance.

The record reveals that the trial court did not err in admitting, under the excited utterance exception to the hearsay rule, the statements made by the victim to the police officers upon their arrival at the scene (see People v Vasquez, 88 NY2d 561, 579 [1996]; People v Marino, 21 AD3d 430, 431 [2005], lv denied 5 NY3d 833 [2005], cert denied __ US __, 126 S Ct 2930 [2006]; People v Swinger, 180 Misc 2d 344, 345 [1998]). We are also of the view that under the circumstances, defendant was not deprived of his constitutional rights to confrontation (US Const Amend VI; NY Const, art I, § 8) by virtue of the admission of the tape recording and the officers' [*2]testimony in the absence of testimony from the victim (see Davis v Washington, __ US __, 126 S Ct 2266, 2273 [2006]; People v Bradley, 8 NY3d 124 [2006]; People v Conyers, 33 AD3d 929 [2006]; cf. Crawford v Washington, 541 US 36 [2004]).

Golia and Rios, JJ., concur.

Pesce, P.J., taking no part.