People v. Davis

204 A.D.2d 564, 614 N.Y.S.2d 214

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Koch, J.), rendered March 25, 1992, convicting him of assault 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 argues that evidence of an out-of-court statement made by the complaining witness was improperly admitted and that a new trial is therefore warranted. This argument is not preserved for appellate review (see, CPL 470.05 [2]). In any event, we agree with the People that the evidence of this out-of-court statement was properly admitted as an "excited utterance” (see, e.g., People v Hood, 194 AD2d 556; People v Colon, 187 AD2d 445; People v Evans, 183 AD2d 780; People v Johnson, 139 AD2d 594). Bracken, J. P., Copertino, Altman and Friedmann, JJ., concur.