People v. Guzman

172 A.D.2d 559

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 1991
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Beldock, J.), rendered November 16, 1987, convicting him of burglary in the second degree and possession of burglar’s tool, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The complainant’s question, "What are you doing in my house?” was heard by his neighbor seconds after the neighbor looked through her peephole and saw the complainant entering the complainant’s apartment. Immediately thereafter, the neighbor observed a fight between the complainant and an unidentified individual. Minutes later, the complainant and the defendant were apprehended by the police and the defendant was found to be concealing several burglar’s tools as well as property from the complainant’s apartment. The surrounding circumstances reasonably justify the conclusion that the complainant interrupted the defendant as he was burglarizing the complainant’s home, and that when he made this statement, the complainant did not have sufficient time to deliberate. Thus, his statement was not a product of studied reflection, and was properly admitted into evidence as an excited utterance (see, People v Linton, 166 AD2d 670; see also, People v Brown, 70 NY2d 513, 519; People v Edwards, 47 NY2d 493, 497).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit (see, People v Bynum, 70 NY2d 858; People v Barrett, 166 AD2d 657; People v Cardona, 136 AD2d 556; People v Villalona, 162 AD2d 565; see also, People v Way, 59 NY2d 361; People v Suitte, 90 AD2d 80). Brown, J. P., Kooper, Harwood and Miller, JJ., concur.