PEOPLE v. FERNANDES (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered May 8, 2007, convicting him of attempted assault in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statement to law enforcement officials.

ORDERED that the judgment is affirmed.

 The record supports the hearing court's determination that the defendant's statement, taken after he was placed in custody but before Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) were given, was made voluntarily and spontaneously and was not the product of police interrogation or its functional equivalent (see People v. Lynes, 49 N.Y.2d 286, 294, 425 N.Y.S.2d 295, 401 N.E.2d 405;  People v. Nevone, 258 A.D.2d 944, 687 N.Y.S.2d 918;  People v. Harrison, 251 A.D.2d 681, 677 N.Y.S.2d 794;  People v. Zanders, 241 A.D.2d 531, 663 N.Y.S.2d 983).

 Contrary to the defendant's contention, the court properly admitted into evidence a statement made by the complainant's then-10-year-old daughter shortly after she witnessed the subject crime and struggled with the defendant over the weapon used in the crime, under the excited utterance exception to the hearsay rule (see People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229;  People v. Donahue, 50 A.D.3d 820, 821, 854 N.Y.S.2d 653;  People v. Rodriguez, 306 A.D.2d 686, 688, 761 N.Y.S.2d 368).