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

The PEOPLE of the State of New York, Respondent, v. Sukur ULLAH, Defendant–Appellant.


Decided: November 15, 2018

Acosta, P.J., Friedman, Manzanet–Daniels, Webber, Singh, JJ. Seymour W. James, The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell LLP, New York, (R. Brendan Mooney of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J. at suppression hearing;  Mark Dwyer, J. at jury trial and sentencing), rendered January 7, 2016, convicting defendant of assault in the second degree, and sentencing him to a term of six months and five years' probation, unanimously affirmed.

The hearing court properly denied defendant's suppression motion.  There is no basis for disturbing the court's credibility determinations.  The hearing evidence, viewed as a whole, supports the court's finding that defendant's wife validly consented to the police entry into the couple's apartment (see generally People v. Gonzalez, 39 N.Y.2d 122, 128–131, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ), that defendant's warrantless arrest in the apartment was therefore lawful, and that his statements were thus admissible.  The factfinder expressly accepted specific testimony that defendant's wife invited the police to enter.  In any event, any error in admitting the statements was harmless.

The trial court properly admitted statements by the victim to other witnesses under the excited utterance exception to the hearsay rule (see People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003] ).  These statements were made within minutes after the victim was assaulted and while he was crying, vomiting, and bleeding from the nose and mouth.  The record supports the inference that he was still under the influence of the stress of the incident despite some passage of time (see People v. Brown, 70 N.Y.2d 513, 520–522, 522 N.Y.S.2d 837, 517 N.E.2d 515 [1987] ), and that his statements were not the product of reflection or possible fabrication.  In any event, any prejudice was limited because the victim testified at trial and was subject to cross-examination (see People v. Ludwig, 24 N.Y.3d 221, 230, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014] ).