PEOPLE v. MITCHELL (2007)

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered October 6, 2006, convicting defendant, after a jury trial, of attempted rape in the first degree and sexual abuse in the first degree, and sentencing him to an aggregate term of 3 1/212 years, unanimously affirmed.

 The court properly admitted the victim's statements as excited utterances.   The evidence established that the witnesses arrived immediately after the attack, and that the victim, described by the witnesses as “screaming,” “hysterical,” and “gasping for air,” was still under the influence of the stress of that incident (see People v. Johnson, 1 N.Y.3d 302, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003] ).

 Defendant claims that the court failed to respond to a jury note or inform counsel of its existence (see People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ).   However, under all the circumstances of the case, the only reasonable interpretation of the note in question is that the jury's request for “all evidence” referred to exhibits and not testimony.   The note came at the very outset of deliberations, and the jury later asked for very specific readbacks of testimony, without making any reference to its earlier request for “all evidence.”   Since the parties had agreed that exhibits would be delivered to the jury immediately on its request (see CPL 310.20 [1] ), there is no basis for reversal.

Defendant's claim regarding the imposition of a mandatory surcharge and fees is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it (see People v. Lemos, 34 A.D.3d 343, 824 N.Y.S.2d 289 [2006], lv. denied 8 N.Y.3d 924, 834 N.Y.S.2d 514, 866 N.E.2d 460 [2007] ).