People v. Rivera

8 A.D.3d 53, 778 N.Y.S.2d 28, 2004 N.Y. App. Div. LEXIS 7825

Opinion

Judgment, Supreme Court, Bronx County (Robert L. Cohen, J.), rendered May 6, 2002, convicting defendant, after a jury trial, of attempted murder in the second degree and intimidating a victim or a witness in the third degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 23 years to life and 2 to 4 years, respectively, unanimously affirmed.

The court properly admitted the victim’s girlfriend’s telephoned statement to the victim’s sister, identifying defendant as the assailant, under the excited utterance exception to the hearsay rule. This declaration, made within minutes of the stabbing by a crying, screaming declarant, was clearly made under the continuing stress and excitement caused by the startling event, and was not made under the impetus of studied reflection (see People v Brown, 70 NY2d 513 [1987]; see also People v Caviness, 38 NY2d 227, 231-232 [1975]). To the extent that defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the declaration was not a testimonial statement and thus was not covered by the Confrontation Clause (see Crawford v Washington, 541 US —, —, 124 S Ct 1354, 1364-1365 [2004]). We have considered and rejected defendant’s remaining arguments. Concur—Tom, J.P., Mazzarelli, Andrias, Ellerin and Lerner, JJ.