People v. Rivera

186 A.D.2d 396, 588 N.Y.S.2d 1011, 1992 N.Y. App. Div. LEXIS 11225

Opinion

— Judgment, Supreme Court, Bronx County (Fred W. Eggert, J., at jury trial, plea and sentence), rendered November 29, 1990, convicting defendant, of robbery in the second degree, and sentencing him to a term of 3 to 9 years, to run concurrently with a term of 1 year imprisonment imposed simultaneously on defendant’s plea of guilty to bail jumping in the first degree, unanimously affirmed.

Following defendant’s attempt to controvert testimony of the People’s witnesses regarding defendant’s display of what appeared to be a gun during the robbery, the trial court properly ruled that, in the circumstances here presented, the 911 tape was admissible both as appropriate rebuttal of the recent fabrication implication (see, People v Jimenez, 102 AD2d 439, 443-444), and as an excited utterance exception to the hearsay rule (People v Marks, 6 NY2d 67, cert denied 362 US 912).

We have considered defendant’s related and additional claims of error and find them to be without merit. Concur— Rosenberger, J. P., Ellerin, Kupferman and Kassal, JJ.