People v. Alvarado

294 A.D.2d 155, 744 N.Y.S.2d 662, 2002 N.Y. App. Div. LEXIS 4783

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 2002
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Felice Shea, J.), rendered August 14, 1997, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a second violent felony offender, to a term of 11 years, unanimously affirmed.

The verdict was not against the weight of the evidence. On the contrary, the evidence was overwhelming, particularly in light of the compelling circumstantial evidence. There is no basis upon which to disturb the jury’s determinations concerning credibility. The jury could have readily concluded that the stabbing victim’s efforts to exculpate defendant were the product of his prison encounter with defendant, a fellow inmate, on the day of his testimony.

The victim’s girlfriend’s first statement to the police was properly admitted into evidence under the excited utterance exception to the hearsay rule, since it was made while the declarant was still under the stress of excitement caused by the stabbing of her boyfriend and the attempted stabbing of herself, notwithstanding that it was in response to questions (see, People v Edwards, 47 NY2d 493). While the second statement came later, after the victim had been taken away by ambulance, the declarant was still operating under the same, if not greater, stress. Since defendant’s sole objection to these statements was that they violated a rule of evidence, his Confrontation Clause argument is unpreserved (People v Qualls, 55 NY2d 733), and we decline to review it in the interest of justice. Were we to review this claim, we would find no basis for reversal. Concur—Nardelli, J.P., Sullivan, Wallach, Rubin and Friedman, JJ.