PEOPLE v. POWELL (2001)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Bobby POWELL, Defendant Appellant.

Decided: November 01, 2001

SULLIVAN, P.J., ROSENBERGER, NARDELLI, RUBIN, and FRIEDMAN, JJ.

James D. Gibbons, for Respondent. Timothy P. Harkness, for Defendant-Appellant.

Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered on or about November 20, 1998, convicting defendant, after a jury trial, of rape in the first degree, and sentencing him, as a second violent felony offender, to a term of 12 years, unanimously affirmed.

The trial court properly admitted statements made by the complainant to the police as excited utterances. The record establishes that the complainant spoke while under the stress or influence of the excitement caused by the rape, so that her reflective capacity was stilled (see, People v. Caviness, 38 N.Y.2d 227, 230-231, 379 N.Y.S.2d 695, 342 N.E.2d 496). The event was a forcible rape, the amount of time that had elapsed was short by any view of the evidence, and every witness agreed that at all relevant times pertaining to the statements to the police, the complainant was still crying, shaking and very upset.

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