People v. Montalbo

254 A.D.2d 504, 681 N.Y.S.2d 547, 1998 N.Y. App. Div. LEXIS 11231

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1998
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered August 19, 1996, convicting him of assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the Supreme Court properly determined that the complainant’s statement identifying the defendant as the person who shot him was admissible as an excited utterance. The “statement was made spontaneously, under the stress of a startling event, and ‘not made under the impetus of studied reflection’ ” (People v Masas, 244 AD2d 433; see also, People v Edwards, 47 NY2d 493; People v Faucett, 185 AD2d 942).

The defendant’s contention that the evidence is legally insufficient to support his conviction is unpreserved for appellate review since he made only a general motion to dismiss before the trial court and did not raise the issues now pursued on appeal (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10, 20; People v Clausell, 223 AD2d 598). In any event, 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 (see, People v Faucett, supra; People v Osborne, 238 AD2d 445, affd 91 NY2d 827).

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]; People v Bleakley, 69 NY2d 490, 495). O’Brien, J. P., Joy, Friedmann and Goldstein, JJ., concur.