People v. Vigilante
| Decision Date | 15 August 1986 |
| Citation | 505 N.Y.S.2d 942,122 A.D.2d 900 |
| Parties | The PEOPLE, etc., Respondent, v. James VIGILANTE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Sulkow, Birnbach & Jasilli, New York City (Howard R. Birnbach and John A. Jasilli, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Miriam R. Best and Linda Starr, of counsel), for respondent.
Before LAWRENCE, J.P., and EIBER, KOOPER and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered December 18, 1984, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Judgment affirmed.
The trial court properly permitted a medical technician to testify as to a statement made by the dying victim, immediate after he regained consciousness in the ambulance, in which he identified the defendant as the assailant who had shot him six times. Although the statement was made some 15 to 20 minutes after the shooting (the decedent was unconscious for 13 minutes of this time), the circumstances surrounding the victim's declaration reasonably justified the conclusion that it had been uttered while the victim remained under the influence of a startling event, i.e., the shooting and resulting injuries, and not after a period of reflection or deliberation which might have led him to be untruthful. Thus, the statement was admissible as an excited utterance (see, People v. Edwards, 47 N.Y.2d 493, 496-497, 419 N.Y.S.2d 45, 392 N.E.2d 1229; see, also, People v. Nieves, 67 N.Y.2d 125, 135, 501 N.Y.S.2d 1, 492 N.E.2d 109; People v. McCullough, 73 A.D.2d 310, 425 N.Y.S.2d 982), even though made in response to the nonsuggestive questions of a medical technician coming to the victim's aid (see, People v. Edwards, supra, at pp. 495, 498-499, 419 N.Y.S.2d 45, 392 N.E.2d 1229; People v. O'Neall, 47 N.Y.2d 952, 419 N.Y.S.2d 950, 393 N.E.2d 1023).
The remainder of the defendant's contentions have been reviewed and found to be without merit or unpreserved for appellate review.
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