PEOPLE v. PAGE (2002)

Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered December 3, 1999, convicting him of kidnapping in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered December 3, 1999, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a weapon in the third degree under Indictment No. 35/97.

ORDERED that the judgment and amended judgment are affirmed.

 The defendant claims that a statement made by the victim naming him as one of the perpetrators should not have been admitted into evidence.   We disagree.   The statement, which was made a few minutes after the victim had been shot and sustained serious injury, was properly admitted under the excited utterance exception to the hearsay rule (see People v. Brown, 70 N.Y.2d 513, 522 N.Y.S.2d 837, 517 N.E.2d 515).

 Additionally, the prosecutor's untimely disclosure of the victim's videotaped statement does not require reversal.   Where there is a delay in providing Rosario material (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64), a defendant is not entitled to reversal of the judgment of conviction unless there is a showing that he or she has been “substantially prejudiced” by the late delivery (see People v. Best, 186 A.D.2d 141, 587 N.Y.S.2d 429).   Here, the defendant failed to demonstrate that he suffered any prejudice from the People's tardy disclosure.   The material was discovered during the cross-examination of the relevant witness, and defense counsel was permitted to stop his cross-examination of that witness and continue it after reviewing the Rosario material.

The defendant's remaining contentions are without merit.