PEOPLE v. JOHNSON (2000)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered July 23, 1997, convicting him of robbery in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On August 28, 1996, the complainant was robbed in the vicinity of Flushing and Irving Avenues in Brooklyn.   Within a short time thereafter, the complainant flagged down a police vehicle at that intersection.   According to the testimony of the police, the complainant was “nervous”, “shocked”, “a little shaken up”, and “stuttering”.   He immediately told the police that he had just been robbed at gunpoint, and that his jewelry had been taken.   Within moments of these statements, the complainant gave the police a physical description of his assailant.   The prosecution moved, in limine, to introduce these statements as excited utterances, and the trial court admitted them over the defendant's objection.

 Contrary to the defendant's contention, the trial court properly admitted the statements under the excited utterance exception to the hearsay rule (see, People v. Cotto, 92 N.Y.2d 68, 677 N.Y.S.2d 35, 699 N.E.2d 394;  People v. Vasquez, 88 N.Y.2d 561, 647 N.Y.S.2d 697, 670 N.E.2d 1328).   The delay between the robbery and the declarations to the police was not sufficient to destroy the indicia of reliability upon which this hearsay exception rests (see, People v. Vasquez, supra;  People v. Brown, 70 N.Y.2d 513, 522 N.Y.S.2d 837, 517 N.E.2d 515).   Furthermore, the unavailability of the declarant is not a prerequisite to the admission of statements deemed to be excited utterances (see, People v. Buie, 86 N.Y.2d 501, 506, 634 N.Y.S.2d 415, 658 N.E.2d 192;  People v. Cannon, 228 A.D.2d 513, 514, 644 N.Y.S.2d 311).

The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.