People v. Castillo

221 A.D.2d 554, 634 N.Y.S.2d 136, 1995 N.Y. App. Div. LEXIS 11915

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered October 31, 1991, convicting him of murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s conviction arises out of an incident in which he demanded money from and then shot and killed Joseph Governale. The proof of the defendant’s guilt was based on the testimony of one eyewitness.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

Contrary to the defendant’s contention, the trial court did not err in permitting Officer Charles Tyrie to testify to statements made by Governale after he was shot. The record supports the conclusion that the statements were made while Governale remained under stress and excitement from the shooting. The statements were therefore admissible pursuant to the hearsay exception for excited utterances (see, People v Brown, 70 NY2d 513).

The defendant’s remaining contentions are unpreserved for appellate review or without merit. Balletta, J. P., Ritter, Copertino and Pizzuto, JJ., concur.