PEOPLE v. HERNDON (2007)

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered September 7, 2004, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

 Just after being violently assaulted by defendant with the sharp edge of a bottle, the victim went upstairs to his apartment, in a highly agitated state, bleeding profusely from a deep laceration in his shoulder.   He was described by his wife, who had difficulty extracting “two words” from him due to his agitated state, as “very hysterical,” crying and confused.   The victim told his wife that he had gotten stabbed and almost robbed, then ran out the door before his wife could respond.   The victim's statement was clearly the product of excitement sufficient to still his reflective faculties, and it qualified as an excited utterance.   The victim's wife immediately placed a 911 call, the contents of which demonstrate that she, too, was operating under the stress of a startling event.   Furthermore, both the victim and his wife testified at trial and defense counsel had unfettered cross-examination of both witnesses, providing an added assurance of reliability (see People v. Buie, 86 N.Y.2d 501, 512-513, 634 N.Y.S.2d 415, 658 N.E.2d 192 [1995] ).   Were we to find any error in the admission in evidence of the recording of the 911 call, in which the victim's wife repeated the statement made by her husband, we would find that error to be harmless.

We perceive no basis for reducing the sentence.