PEOPLE v. RUIZ

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Alberto RUIZ, Defendant-Appellant.

Decided: January 16, 1997

Before MILONAS, J.P., and ROSENBERGER, RUBIN, WILLIAMS and ANDRIAS, JJ. Richard Nahas, for Respondent. Rosemary Herbert, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered June 12, 1991, convicting defendant, after a jury trial, of murder in the second degree, attempted murder in the second degree, and robbery in the first degree, and sentencing him to consecutive terms of 25 years to life, 8 1/3 to 25 years, and 12 1/2 to 25 years, respectively, unanimously affirmed.

 The trial court correctly determined that the statements made by the surviving victim to his dispatcher and police officers, within 30 minutes after being shot twice and witnessing the fatal shooting of his associate, were excited utterances, as the “surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” (People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229;  People v. Torres, 196 A.D.2d 758, 601 N.Y.S.2d 919, lv. denied 82 N.Y.2d 854, 606 N.Y.S.2d 606, 627 N.E.2d 527).

 Defendant's challenges to the introduction of evidence, along with the People's opening and summation comments, concerning the character and background of the victims, and defendant's romantic affairs during his period of flight, do not warrant reversal.   Defendant's claims concerning the victims are unpreserved because defendant either made no objections or generalized objections to the matters challenged on appeal (see, People v. Rios, 220 A.D.2d 225, 631 N.Y.S.2d 848, lv. denied 87 N.Y.2d 924, 641 N.Y.S.2d 606, 664 N.E.2d 517).   We note that the evidence and comment concerning the surviving victim's background were responsive to defendant's theory of defense.   Furthermore, the evidence of defendant's romantic affairs was necessary for a full explanation of the incriminating circumstances of defendant's flight.   Moreover, any errors in regard to these issues were harmless in view of the overwhelming direct and circumstantial evidence of defendant's guilt.

We have considered defendant's remaining arguments, including those raised in his pro se supplemental brief, and find them to be unpreserved and without merit.

MEMORANDUM DECISION.