People v. Bryant

8 A.D.3d 151, 780 N.Y.S.2d 313, 2004 N.Y. App. Div. LEXIS 8648

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 2004
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (John S. Moore, J.), rendered March 26, 2001, convicting defendant, after a jury trial, of manslaughter in the second degree, and sentencing him, as a second felony offender, to a term of 7V2 to 15 years, unanimously affirmed.

The court properly declined to submit the lesser included offense of criminally negligent homicide. Even when viewed in the light most favorable to defendant, there is no reasonable view of the evidence that he did not perceive the substantial and unjustifiable risk that handing a knife to the codefendant during a violent struggle with the victim would lead to the victim’s death (see People v Randolph, 81 NY2d 868 [1993]; compare People v Heide, 84 NY2d 943 [1994]).

The court properly admitted, as an excited utterance, the victim’s statement to her mother naming defendant as one of her attackers. The evidence established that the traumatized victim was under the stress of her injuries and was incapable of studied reflection (see People v Johnson, 1 NY3d 302 [2003]; People v Brown, 70 NY2d 513 [1987]).

The court properly exercised its discretion in denying defendant’s mistrial motion made after the victim’s mother mentioned the excluded contents of her 911 call, since there was minimal prejudice to defendant, particularly in light of the court’s prompt curative instruction (see People v Santiago, 52 NY2d 865 [1981]).

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