PEOPLE v. BARRY (2026)

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered February 3, 2022, convicting defendant, after a jury trial, of kidnapping in the second degree, assault in the second degree, criminal possession of a weapon in the second and third degrees, unlawful imprisonment in the first degree, and bail jumping in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 22 to 24 years, unanimously affirmed.

The court properly admitted the nontestifying victim's statement under the excited utterance exception to the hearsay rule (see People v. Hernandez, 28 N.Y.3d 1056, 1057, 43 N.Y.S.3d 237, 65 N.E.3d 1272 [2016];  People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003]).  The declarant made the statement to the officers who arrived on the scene shortly after the shooting at issue (People v. Gantt, 48 A.D.3d 59, 71, 848 N.Y.S.2d 156 [1st Dept. 2007], lv denied 10 N.Y.3d 765, 854 N.Y.S.2d 327, 883 N.E.2d 1262 [2008]).  The officers also observed him to be limping and in pain, with an open gunshot wound to his leg (see People v. Fratello, 92 N.Y.2d 565, 570, 684 N.Y.S.2d 149, 706 N.E.2d 1173 [1998], cert denied 526 U.S. 1068, 119 S.Ct. 1462, 143 L.Ed.2d 548 [1999]).  Given the circumstances, the declarant was “under the stress or influence of the excitement caused by the event” and as such, the statement was admissible as an excited utterance (People v. Nieves, 67 N.Y.2d 125, 135, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986];  see Johnson, 1 N.Y.3d at 306–307, 772 N.Y.S.2d 238, 804 N.E.2d 402).

We perceive no basis for reducing defendant's sentence.