PEOPLE v. FLETCHER (2018)

Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered September 2, 2014, as amended October 6, 2014, convicting defendant, after a jury trial, of burglary in the second degree, criminal contempt in the first degree (six counts), endangering the welfare of a child (two counts) and aggravated harassment in the second degree, and sentencing him to an aggregate term of six years, unanimously affirmed.

Defendant's challenges to the sufficiency and weight of the evidence supporting his burglary conviction are unavailing (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  The evidence warranted an inference that, beyond his unlawful entry into the victim's apartment, defendant intended to violate a separate provision of the order of protection obtained by the victim, namely a provision that prohibited any contact with her (see People v. Lopez, 147 A.D.3d 456, 46 N.Y.S.3d 591 [1st Dept. 2017], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017];  People v. Carpio, 39 A.D.3d 433, 835 N.Y.S.2d 107 [1st Dept. 2007], lv denied 9 N.Y.3d 873, 842 N.Y.S.2d 785, 874 N.E.2d 752 [2007] ).

The court properly admitted as excited utterances the victim's statements to a responding police officer.  Officers who arrived at the victim's apartment within a few minutes of a radio run observed that the victim was crying and her hands were shaking as she told the police that she had just argued with defendant, who had wielded a knife in front of her and her two young daughters.  The evidence supports the conclusion that the victim made these statements while still under the influence of the stress of this startling event (see People v. Brown, 70 N.Y.2d 513, 520–522, 522 N.Y.S.2d 837, 517 N.E.2d 515 [1987];  People v. Caviness, 38 N.Y.2d 227, 231, 379 N.Y.S.2d 695, 342 N.E.2d 496 [1975];  People v. Smith, 37 A.D.3d 333, 334, 830 N.Y.S.2d 138 [1st Dept. 2007], lv denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243 [2007] ).

Regardless of whether defendant's waiver of all cross-examination of the victim also waived any claim that the admission of her excited utterances violated his right of confrontation, we find no violation of the Confrontation Clause (see Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006];  People v. Nieves–Andino, 9 N.Y.3d 12, 15–16, 840 N.Y.S.2d 882, 872 N.E.2d 1188 [2007];  People v. Turner, 143 A.D.3d 582, 583, 40 N.Y.S.3d 369 [1st Dept. 2016] ).