People v. Clark

135 A.D.2d 1097, 523 N.Y.S.2d 315, 1987 N.Y. App. Div. LEXIS 52953

Opinion

— Judgment unanimously affirmed. Memorandum: Defendant, appealing from a judgment convicting him of manslaughter in the first degree, argues that reversible error occurred when the trial court allowed the victim’s neighbor to testify that the victim telephoned him about 45 minutes to an hour after she had been beaten, and told him that defendant had attacked her. The trial court ruled that the testimony was admissible as an excited utterance. We agree with defendant that this was error, based on the time which had elapsed prior to the statement and the absence of any evidence that the victim lacked the capacity for reflection during that time (see, People v Brown, 70 NY2d 513; People v Edwards, 47 NY2d 493; People v Acomb, 87 AD2d 1, 9, lv dismissed 56 NY2d 1034). We find, however, that the admission of that testimony was harmless error, given the otherwise overwhelming proof of guilt at trial (see, People v Crimmins, 36 NY2d 230). We have examined defendant’s remaining contentions on appeal and find them to be without merit. (Appeal from judgment of Monroe County Court, Celli, J. — manslaughter, first degree.) Present — Dillon, P. J., Callahan, Denman, Pine and Balio, JJ.